Norris v The Queen

[2020] NTCCA 8

CITATION:Norris v The Queen [2020] NTCCA 8

PARTIES:NORRIS, Jesse

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 17 of 2019 (21825330)

DELIVERED:  8 July 2020

HEARING DATE:  23 December 2019

JUDGMENT OF:  Grant CJ, Southwood and Barr JJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Failure to take into account a relevant consideration – Misapplication of principle – Manifest excess

Applicant pleaded guilty to the supply of a commercial quantity of methamphetamine – Sentenced to imprisonment for five years and eight months with non-parole period of four years – Whether error in finding that weapons discovered during search of the applicant’s vehicle were involved in the drug dealing – Inference of involvement was available – Whether failure to have regard to steps taken by applicant towards rehabilitation – Rehabilitation expressly taken into account but given less weight given nature of offending – Whether error in applying The Queen v Roe as a guideline judgment – No application contrary to the principle of instinctive synthesis – Whether sentence manifestly excessive – Head sentence within range and any disparity the consequence of the mandatory minimum non-parole period – Leave to appeal granted – Appeal dismissed.

Sentencing Act 1995 (NT) s 40, s 55

Bara v The Queen [2016] NTCCA 5, Clarke v The Queen [2019] NTCCA 2, Daniels v The Queen (2007) 20 NTLR 147, Edmonds v The Queen [2019] NTCCA 1, Emitja v The Queen [2016] NTCCA 4, Fillipou v The Queen (2015) 89 ALJR 776, Green v R (2011) 244 CLR 462, Lowndes v The Queen (1999) 195 CLR 665, Markarian v The Queen (2005) 228 CLR 357, Morrow v The Queen [2013] NTCCA 7, Noakes v The Queen [2015] NTCCA 7, R v B; ex parte A-G [2000] QCA 110, R v Bojovic [1999] QCA 206, R v Carrall [2018] QCA 355, R v Crossley [1999] QCA 223, R v Indrikson [2014] NTCCA 10, R v Olbrich (1999) 199 CLR 270, Sultana (1994) 74 A Crim R 27, The Queen v Falzon (2018) 92 ALJR 701, The Queen v Kilic (2016) 339 ALR 229, The Queen v Roe [2017] NTCCA 7, Tran v The Queen [2019] NTCCA 12, Whitlock v The Queen [2018] NTCCA 7, Wiren v The Queen (1996) 5 NTLR 211, Wong v The Queen (2001) 207 CLR 584 at 608, referred to.

REPRESENTATION:

Counsel:

Applicant:J Tippett QC

Respondent:  D Morters SC

Solicitors:

Applicant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  26

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

Norris v The Queen [2020] NTCCA 8

No. CA 17 of 2019 (21825330)

BETWEEN:

JESSE NORRIS

Applicant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, SOUTHWOOD and BARR JJ

REASONS FOR JUDGMENT

(Delivered 8 July 2020)

THE COURT:

1. The applicant pleaded guilty to one count of supplying a commercial quantity of methamphetamine.  The maximum penalty for that offence is imprisonment for 25 years.  The applicant was sentenced to imprisonment for five years and eight months after a discount for his plea of guilty, and a non-parole period of four years was fixed.  The sentencing court was required to fix a non-parole period of not less than 70 percent of the head sentence.[1]  An order suspending sentence was not available as the head sentence exceeded five years.[2]

2. The applicant seeks an extension of time within which to make application for leave to appeal against the sentence, and leave to appeal.  The proposed grounds of appeal are:

   (a)that the sentencing judge applied The Queen v Roe[3] as if it were a guideline judgment rather than adopting a process of instinctive synthesis;

   (b)that the sentencing judge failed to have regard to steps taken by the applicant towards his rehabilitation;

   (c)that the sentence was manifestly excessive; and

   (d)that the sentencing judge erred in law in finding that weapons discovered during a search of the applicant’s vehicle were involved in the drug dealing.

3. The principles applicable to appeals of this nature are well established.[4]  The presumption is that there is no error.  An appellate court interferes only if it is shown that the sentencing judge committed error in taking into account some irrelevant factor, in failing to take into account a relevant factor, in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence.  Grounds (a), (b) and (d) assert specific error on the part of the sentencing judge which, if established, would require the sentence to be set aside and the sentencing discretion to be exercised afresh.  If specific error is not established, it is incumbent upon the applicant to show that the sentence was clearly and obviously, and not just arguably, excessive.

   The circumstances of the offending

4. The agreed facts on sentence[5] may be summarised as follows.

5. The applicant was under surveillance by police for suspected drug supply.  On the morning of 7 June 2018 the offender met with another man in a Darwin carpark and provided him with 0.71 grams of methamphetamine in exchange for money.  A short time later detectives stopped the applicant’s vehicle and advised him that it was to be searched.  The applicant grabbed a backpack from the rear seat of the vehicle, jumped over the centre console, got out of the vehicle through the front passenger door, and escaped on foot.  Police gave chase and the applicant ran through the yards of a number of residential properties in an attempt to avoid capture.  He eventually fell and police apprehended him.

6. Police searched the applicant and found $450 in cash in his pants pocket.  Police then searched the applicant’s backpack and found eight clipseal bags of varying weights containing a total of 136.54 grams of methamphetamine; a clipseal bag containing traces of methamphetamine; a number of empty clipseal bags; and a set of digital scales.  The applicant’s vehicle was also searched and police found a further $550 in cash; one clipseal bag containing 0.12 grams of methamphetamine; an ice pipe; two .308 calibre ammunition rounds; and an iPhone.

7. Later that day police executed a search warrant at the applicant’s residence.  During the search police found and seized a set of digital scales; two clipseal bags containing a total of 0.36 grams of methamphetamine; a CCTV monitoring screen; and two ice pipes.  A second vehicle owned by the applicant which was at that residence was also searched and found to contain a .308 calibre Winchester rifle; two .308 ammunition rounds; an electro-muscular stun gun; two sets of digital scales; a set of calibration weights; and an iPhone.  The rifle had been stolen from the owner’s property approximately one month previously.

8. Interrogation of that mobile phone disclosed that between 20 April 2018 and 7 June 2018 the applicant engaged in 41 separate text exchanges to a number of different individuals, both for the purpose of supplying methamphetamine to people directly and for the purpose of supplying methamphetamine to people who were in turn supplying to others for him.  The total amount of methamphetamine arranged to be supplied in those text messages was 28.96 grams.

9. The methamphetamine in the applicant’s possession at the time of his arrest had a street value of $600 per gram.  The quantity in his possession had the potential to yield in excess of $80,000 if sold that way.  The text messages disclose that the applicant was selling methamphetamine in amounts ranging from 0.25 grams up to 7 grams, but most commonly in quarter-gram and half-gram amounts.

10. Against that background, we deal first with those grounds of appeal asserting specific error.

    The relationship between weapons and drug supply

11. The applicant contends that the sentencing judge erred in law in finding adversely to the applicant that his drug dealing business involved the weapons and ammunition which were discovered in his vehicles, in circumstances where that fact had not been established beyond reasonable doubt.[6]  This ground is based on the following passage in the sentencing remarks:[7]

    You were in the business of drug dealing.  A business that involved prohibited and stolen weapons and a network of contacts, including customers, people who supplied on your behalf and people who sourced customers for you.

12. The applicant contends that no admission was made during the sentencing proceeding that the firearm was ever used by the applicant in the course of his drug dealing activities; and the Crown Facts on sentencing did not expressly allege that those items were connected with or had been used by the applicant in the conduct for which he was charged.

13. It is well recognised that evidence of the possession of “the accoutrements of a drug trafficking business, such as scales, re-sealable plastic bags, firearms, a multiplicity of mobile telephones or significant quantities of cash” is admissible in proof of a charge of drug supply.[8]  Possession of such items is circumstantial evidence which, in conjunction with the fact of possession of drugs, may found an inference beyond reasonable doubt that the accused was engaged in the business of selling drugs.[9]  By that same process of reasoning, evidence (or agreed facts) that an accused is in possession of a substantial quantity of drugs, is engaged in an ongoing drug supply business, and has possession of digital scales, re-sealable plastic bags and a significant quantity of cash, may found an inference to the requisite standard that a firearm and a stun gun also found in that person’s possession were related in a general sense to the drug supply activity.

14. The facts that the applicant was in possession of the rifle, ammunition of the same calibre as that rifle, and the stun gun were included in the Crown Facts with the agreement of the applicant and were therefore available for the purpose of the sentencing proceedings.  Their inclusion in the Crown Facts suggests that they were considered relevant by the parties.  That availability and relevance were not displaced by the fact that the rifle, ammunition and stun gun were also the subject of other charges brought in the Local Court which had not been dealt with at the time the applicant was sentenced for the charge on indictment.  During the course of the sentencing submissions the Crown identified the relevance of those facts as follows:[10]

    MS LOUDON:   Well, your Honour, they are relevant, because even though there is that prohibited weapon, being the stun gun, there is the escaping of police custody.  That is all relevant to the context, or it is relevant for your Honour to make a determination as to what role the offender had in the supply of dangerous drugs, what sort of enterprise he was operating.  All of those other circumstances, whilst they are not charges, they are relevant for your Honour to make a determination as to the offender’s culpability and the extent.

    HER HONOUR:   Well, what do you say I should conclude from those matters that is relevant to this sentencing exercise?

    MS LOUDON:   In the whole of the context of the factual matrix, your Honour has before you a person who had a significant quantity of methamphetamine, he had scales, clipseal bags.  He had, at his premises, set up CCTV cameras that were recording at the time that police executed the search warrant.  He was in possession of both a stun gun and a firearm and, your Honour, certainly those two items are tools of the drug trade, in that they are used for protection by persons who are engaged in carrying on a drug supply business for financial gain. 

15. Later in the sentencing submissions, counsel then appearing for the applicant did not take issue with the proposition expressed by the sentencing judge that the factual matrix of the offending included “stolen firearms and prohibited weapons and the indicia of supply”.[11]  That tacit acceptance was consistent with the applicant’s written submissions on sentence, which provided in part:[12]

    There are other features of the offending that bear hallmarks of a more serious enterprise, particularly having regard to the items located by police during their search of [the applicant’s] residence.  The defence position however is that the most serious of those items, namely, the firearm, was not something ever utilised by [the applicant] in the course of his activities.  He was engaged in the supply of drugs immediately prior to his arrest; however, the firearm was located in a different vehicle that remained at his residence.  It is more properly to be regarded as an indication of the types of individuals with whom [the applicant] had involved himself and the risks (both to himself and others) inherent in trafficking in illicit drugs.

16. That submission must be considered in light of the fact that the applicant did not stand to be sentenced only for his conduct on the day of his arrest, but for his drug supply during the period of almost two months covered by the phone records and charge on indictment.  The sentencing judge’s finding was not that the applicant had ever used the weapons in the course of his drug dealing.  It was that his business of drug dealing involved the possession of prohibited and stolen weapons, and that fact was relevant to the assessment of the nature of his enterprise.  That inference was available in the circumstances and no error is made out in this respect. 

    Rehabilitation

17. The applicant contends that the sentencing judge failed to consider the steps he had taken towards his rehabilitation after his arrest and release on bail.  In order to operate as a freestanding ground of appeal, the contention must be that the sentencing judge committed specific error by failing to take into account rehabilitation as a relevant consideration, rather than by failing to accord adequate weight to the applicant’s efforts towards, and prospects of, rehabilitation.  This is because an appellate court must be cautious not to substitute its own opinion for that of the sentencing judge in relation to matters of weight in the absence of identifiable or manifest sentencing error.[13]  The contention that a sentencing court has failed to give adequate weight to a matter or sentencing purpose can only operate as a particular of manifest excess.[14] 

18. The sentencing judge received a number of references and reports concerning the applicant’s performance following his arrest.  Those matters were dealt with in the sentencing remarks:[15]

    You were arrested on 7 June and you were released on bail to enter into the Banyan House program – that is the residential recovery program – on 5 July 2018.  So you have spent 29 days in custody on remand; 30 days now.  Between 5 July and 5 November last year – that is a period of four months – you undertook that residential rehabilitation program.  I have read the exit report and you completed the program satisfactorily, although the report notes that you missed your last appointment for aftercare counselling.

    …

    I need to talk about the things that I need to think about.  This is a very serious offence.  It carries a maximum penalty of 25 years' imprisonment.  Your phone records indicate that you were selling methamphetamine in quarter-gram and half-gram amounts and that you had other people selling on your behalf.  You did this over an extended period of time – about two months – and you only stopped because police arrested you.

    Although you might have consumed some of the drug yourself – indeed, I accept that you did – your motive was financial gain and you stood to make a substantial amount of money.  So I place the greatest weight on general deterrence, denunciation and community protection.  Personal deterrence carries some weight, in light of your earlier drugs convictions, but those were relatively minor.

    Your counsel has placed a great deal of emphasis on the steps you have taken towards rehabilitation.  However, the courts have said a number of times and the Court of Criminal Appeal in the Northern Territory has said that in cases such as this, rehabilitation must take a back seat to other considerations that I have spoken about.  Also, this is not a case of a desperate drug‑dependent individual driven to small‑scale dealing to support a habit. 

    …

    I also need to consider whether you are remorseful for your part in distributing this pernicious drug in our community, with all the harm that that produces.  Not just to the users and their families but to the wider community in the form of increased crimes of violence and property offending as users try to support their habits. 

    The fact that you continued in the business of supplying the drug for profit until caught by police argues that you are not remorseful.  I have read references from your family and friends that say you are a good person and were a person of good character before you began this drug dealing. These references say that since you completed the Banyan House rehabilitation program you are a changed person – more like the person that they knew – which is an entirely good thing.

    I have also read a letter from the director of the SLIDE Youth Dance Theatre, who speaks of your involvement in a production they did about the epidemic of ice use in the community.  She wrote, among other things, that you chose to be part of that artistic and confrontational journey and that your commitment to the company, the cast and crew illustrated your strength as a person who wants to create change for the better.  Again, that is to your credit.

19. The sentencing judge quite obviously had regard to the applicant’s efforts at rehabilitation.  Her Honour took both the materials describing those matters and the submissions based on those materials into account, but adopted the approach which has been affirmed by this Court on a number of occasions.  That is, when sentencing offenders for trafficking in commercial quantities of drugs of dependence, denunciation, community protection and deterrence will be the dominant sentencing purposes while rehabilitative purposes will be of secondary importance, even when dealing with accused who has no relevant prior convictions.[16]  That approach recognises the high degree of moral culpability and objective seriousness involved in offending of this nature, and the highly deleterious social consequences which flow from that conduct.

20. There was no failure on the part of the sentencing judge to take rehabilitation into account as a relevant factor.  The question whether adequate weight was given to rehabilitation is subsumed in the determination of whether the sentence ultimately imposed fell within or outside the available range, which is discussed later in these Reasons.

    The use of The Queen v Roe

21. The applicant contends that the sentencing judge applied The Queen v Roe[17] as if it were a guideline judgment, rather than adopting a process of instinctive synthesis.  That contention is based on the fact the sentencing judge and both counsel made reference during the course of the sentencing submissions to what was described by the majority in Roe as the “second category” of offending involving the supply of commercial quantities of methamphetamine; and the sentencing judge ultimately adopted a starting point of imprisonment for seven years before discount for the plea of guilty.  The relevant passage in Roe states:[18]

    The second category of case involves offenders who are in effect convicted of conducting a drug trafficking business for a continuing period of time. These offenders are characteristically higher up the level of the drug supply chain and they may have established a small organisation in which they use other people as couriers and suppliers to drug users. The starting point in these cases is ordinarily a sentence of seven to 10 years’ imprisonment.

22. However, the majority in Roe had prefaced its review of the sentences imposed for the supply of commercial quantities of methamphetamine, and its broad categorisation based on that review, with an important qualification:[19]

    In Wong v The Queen [[2001] HCA 64, 207 CLR 584], Gleeson CJ stated that, both in submissions and in reasons for judgment, “inadequacy or excessiveness is often demonstrated by a process of comparison” and that “[s]uch a process is a legitimate forensic tool for advocates and judges; and has been employed for many years” [Wong v The Queen [2001] HCA 64; 207 CLR 584 at [12]]. However, caution must be exercised not to adopt an artificially rigid approach to the process of comparison, because it is not for the courts to create subsets of a legislatively prescribed offence [Wong v The Queen [2001] HCA 64; 207 CLR 584 at [82]]. Consistency in sentencing is an important outcome, but does not resolve to “numerical equivalence” [Barbaro v R; Zirilli v R (2014) 253 CLR 58 at [40]]. Like cases are to be treated in like manner [Wong v The Queen [2001] HCA 64; 207 CLR 584 at [6] per Gleeson CJ] whilst preserving the legitimate breadth of the sentencing discretion.

1. Despite that qualification, following the decision in Roe there developed an occasional tendency on the part of both prosecutors and defence counsel to invoke the categories spoken of in Roe as determinative of the sentencing range for a particular type of offence, and to treat the decision as something in the nature of a guideline judgment.  That tendency led this Court in Edmonds v The Queen to state (footnotes omitted):[20]

   A number of matters should be understood concerning [the summary of the review in Roe]. First, it operates as a broad categorisation of the dispositions made in those cases which were subject to review. Secondly, the penalties referred to are indicative starting points before the application of any reduction to take account of a plea of guilty and remorse. The indicative starting points make it clear that all three categories of offending are objectively serious. Thirdly, in each of those categories the penalty imposed may be lower (or higher) having regard to the particular subjective circumstances of the offender.  However, the application of subjective factors cannot result in an outcome which is disproportionate to the crime.  The sentence cannot be less than the objective gravity of the offence requires.  Fourthly, that summary does not operate, and is not intended to operate, as a “guideline judgment”. There is no statutory scheme for the delivery of guideline judgments in this jurisdiction, and the purpose of the summary is only to give indications of particular factors taken into account or given particular weight, and of the kind of outcome that might be expected in a certain kind of case in the interests of consistency.

   Finally, the objective circumstances of some types of offending may be such that the case does not fall comfortably or precisely within one or other of the categories described in that summary. This is such a case. However, the assessment of moral culpability and objective seriousness still requires a consideration of factors such as 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 offence; the reward which the offender hoped to gain from participation in the offence; the difficulty in detecting the offence; and the quantity of drugs involved (subject to the qualification posited above).

2. The decision in Edmonds was delivered in January 2019, and the sentencing proceedings in the present matter were conducted in February 2019.  That the sentencing judge and counsel for the applicant were aware of that decision is apparent from the following exchange during the course of submissions:[21]

   So, I’m asking - really I’m looking to you to point out to me what is different about this man that would take him out of that bog-standard, category 2 objectively very serious commercial drug dealing offending over an extended period of time.

   MS KER:   I do say your Honour will find support for that positon in the reference material provided to your Honour this morning.  I also make the submission with respect and I have identified this in the written submissions, there is of course a need to exercise some caution in the application of Roe.

   HER HONOUR:   Yes.

   MS KER:   The Court of Criminal Appeals made that clear in Edmonds.

   HER HONOUR:   Absolutely.  It is not a scale; it is not even a guideline judgment.  But it is useful, particularly, the analysis of all of the previous sentences that went in to, you know, join those conclusions - - -

   MS KER:   Into that - - -

   HER HONOUR:   - - - of categories 1, 2 and 3.

   MS KER:   - - - formulation, yes.

   HER HONOUR:   They provide a useful reference point.

   MS KER:   Yes.

3. It is apparent from that exchange that the sentencing judge well understood both the permissible uses and the limitations of the categorisation in Roe.  There is nothing in the sentencing remarks which indicates that the decision was subsequently used in a way contrary to the process of instinctive synthesis.  In particular, and contrary to the submission made by counsel for the applicant in this appeal, that is not an inference which is available from the fact that the sentencing judge adopted a starting point of imprisonment for seven years in coincidence with the statement in Roe that the starting point in the second category of case “is ordinarily a sentence of seven to 10 years’ imprisonment”.  The remarks on sentence show a careful consideration of the facts and circumstances of this offending, and of where this particular offending and offender lay on the spectrum.[22]  No error is demonstrated in this respect.

   Manifest excess

4. The final ground of appeal is that the sentence imposed was manifestly excessive.  The applicant’s “essential submission”[23] on this ground is that the sentence imposed discloses error when compared to the sentence imposed by this Court in Roe, and resulted in a breach of the principle of equal justice.  A number of basal principles should be noted at the outset.

5. First, in assessing the contention that a sentence imposed is manifestly excessive “[i]t is not this Court’s task to see whether the sentencing under appeal is more severe or lenient than a particular sentence within the range, imposed on a person not a co-offender in the particular crime”.[24]  Just as a sentencing judge is not bound by the categorisation in Roe to adopt an artificially rigid approach to the process of comparison, nor do the sentences imposed in Roe and the cases reviewed there comprise a fixed range departure from which will necessarily found demonstrable error.[25]  There is very limited utility in searching for points of similarity or distinction between a case on appeal and another case in which a shorter or longer sentence has been fixed for the same statutory offence but in relation to a different offender and episode of offending.

6. Second, equal justice in sentencing requires identity of outcome in cases that are relevantly identical and different outcomes in cases that are different in some relevant respect.[26]  The concept of equal justice has its most specific application in the principle of parity, which operates to ensure that sentences are proportionate and just as between co-offenders.  In its application to offenders who have been sentenced for unrelated offending arising from entirely separate transactions, the concept of equal justice adds little or nothing to the ordinary process of considering whether a sentence is manifestly excessive or inadequate.

7. Third, a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.  This is because the discretion which the law commits to sentencing judges is of vital importance in the administration of the system of criminal justice.[27]   An appellate court is bound to allow to sentencing judges “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.[28]

8. Subject to those qualifications, the offender in Roe was resentenced with a starting point of eight years’ imprisonment.  Despite the appeal court’s reservations about the level of the offender’s remorse, the sentencing judge’s assessment of a 25 percent reduction for the plea of guilty was not disturbed.  The application of that discount led to a head sentence of imprisonment for six years with a non-parole period of three years.  The offending in that case was committed prior to the increase to the minimum non-parole period from 50 percent to 70 percent for a “specified offence”, which included the offence of supplying a commercial quantity of methamphetamine.[29]

9. The conduct for which that sentence was imposed involved the supply of 200 grams of methamphetamine over a three month period.  During the first month of that period, the offender typically obtained that methamphetamine in 3.5 grams quantities, and then sold it in quantities ranging between 0.1 grams and 1.75 grams.  The offender then moved to Melbourne and began to obtain methamphetamine in 28 grams quantities, and transported the drug to Darwin for sale by associates.  During the period of his activity the offender’s phone was monitored by police, who intercepted more than 1000 SMS messages and more than 400 telephone calls to and from the offender’s phone related to the supply of methamphetamine. 

10. As is to be expected, there are both similarities and differences between the facts of that offending and the offending in the present case.  The total amount of methamphetamine supplied by the applicant was 163.94 grams.  While that was less than the total quantity for which the offender in Roe was sentenced, that difference in quantity must be considered in a context in which the statutory threshold for a commercial quantity is 40 grams of methamphetamine.  Roe involved activity over a three month period, whereas the applicant was charged for activity over a period of approximately seven weeks.  In both cases, however, those activities only came to an end when the offenders were apprehended by police.  Roe involved an element of cross-border transportation, which the present case did not.

11. Both offenders apparently commenced by procuring and then selling methamphetamine in small quantities.  The offender in Roe graduated to buying the drug in 28 grams quantities, whereas the applicant was apprehended in possession of almost 140 grams which it was his intention to supply on a commercial basis.  Both offenders engaged associates to sell the drug on their behalf.  Like the offender in Roe, the applicant stood between the major supplier and the street dealers and users in the supply chain.  While in Roe it was agreed that the amount of methamphetamine sold by the offender had the capacity to produce gross revenue of approximately $300,000 over a period of three months, that calculation was based on the assumption that if sold by the “point” (ie 0.1 gram), an ounce of methamphetamine could be sold for up to $42,000.  The agreed fact in the present case was that the methamphetamine the applicant had in his possession at the time of his arrest had the potential to yield in excess of $80,000 if sold by the gram.  As already described, the bulk of the applicant’s sales in the seven weeks prior to his arrest were made in smaller quantities.

12. Roe involved far more telephone calls and SMS messages related to drug supply, but that may be explained in part by the fact that police had a telephone intercept on the offender’s phone.  The communications which formed part of the sentencing facts in the present matter were derived from the interrogation of a single phone found in the offender’s possession after his apprehension.  It may also be explained in part by the fact that that the estimated 200 grams of methamphetamine in Roe had been sold by the time of the offender’s arrest, while the applicant was arrested in possession of almost 140 grams of methamphetamine before he had opportunity to sell it. 

13. So far as the subjective circumstances were concerned, the offender in Roe was 31 years old at the time of the offending and the applicant was 26.  Both were past the age where any significant allowance might be made for youthful indiscretion.  Both offenders were themselves users of methamphetamine, but in neither case was that considered to reduce criminal culpability or to provide much by way of mitigation.  In neither case was the use of or addiction to methamphetamine the result of social or economic disadvantage, poor education or emotional or physical abuse.  Both had ceased employment as a result of their methamphetamine use before progressing to the supply of the drug.  Both offenders had a criminal history involving prior offences for minor drug offences, although the offences committed by the applicant were found to be proved without proceeding to conviction.

14. Despite their apparent dependencies on methamphetamine, neither offender had taken any steps towards treatment or rehabilitation until they were arrested and incarcerated.  At the time of sentence, the offender in Roe had completed the Safe Sober Strong program while incarcerated and had not had the benefit of bail.  In the present matter, as the sentencing judge described in the sentencing remarks extracted above, the applicant had undertaken and successfully completed the residential rehabilitation program at Banyan House during the period of bail.  Neither offender disclosed to police the names of the persons from whom they purchased the methamphetamine, or the persons they used to sell it on their behalves.  Neither offender told the authorities with any specificity the quantity of the methamphetamine they had supplied or how much money they had made from the supply of the dangerous drug.

15. It may be accepted that the offending in Roe was objectively more serious having regard to the points of distinction we have described above.  That difference is reflected in the fact that a starting point of imprisonment for eight years was adopted in Roe, and a starting point of imprisonment for seven years was adopted in the present case.  While the sentencing judge in the present case allowed a discount of 20 percent for the plea of guilty, rather than 25 percent as was applied in Roe, that was on the basis of the sentencing judge’s assessment that the applicant was not genuinely remorseful for his offending.[30]  The applicant did not give any direct evidence of remorse during the course of the sentencing proceedings, and that finding was open to the sentencing judge. 

16. There is nothing in those outcomes, and nothing arising from a survey of the comparative sentences, which would lead necessarily to the conclusion that the head sentence imposed in this case was clearly and obviously, and not just arguably, excessive.  During the course of the sentencing proceedings, counsel then appearing for the applicant effectively conceded that a head sentence of five years was within range.  While the applicant is not bound by that concession in the conduct of this appeal, it illustrates the difficulty in pressing the contention that a head sentence of five years and eight months fell outside the permissible scope of the sentencing discretion.

17. The disparity in this case, and the applicant’s real cause for complaint, is that the sentence imposed on him was subject to a non-parole period of four years while a non-parole period of three years was fixed in Roe, notwithstanding the longer head sentence and the more serious nature of the offending in that matter.  As described at the outset, the sentencing court in this case was required to fix a non-parole period of not less than 70 percent of the sentence.  The amendment to the Sentencing Act providing for that mandatory minimum came into effect after the commission of the offence in Roe but before the commission of the offence in this case. 

18. If a head sentence of more than five years is fixed for a “specified offence”, an order suspending sentence is not available and the mandatory minimum non-parole period will have operation.  It was for that reason in particular that counsel for the applicant during the sentencing proceedings pressed for a head sentence of five years or less.  However, as defence counsel necessarily accepted, that consideration could not govern the point at which the head sentence was fixed:[31]

    MS KER:   Your Honour, it goes almost without saying that not all of the cases canvassed by the Court of Criminal Appeal in Roe, even those of broadly comparable seriousness involved the imposition of head sentences in excess of 5 years.

    HER HONOUR:   No.

    MS KER:   Some did.  Some involved head sentences of less than 5 years and still with the imposition of a non-parole period, although those sentences, on my reading, dealt with the situation that previously existed under the Sentencing Act where the minimum non-parole period was 50 per cent, rather than 70 per cent, as it now is mandated.  And I am not, for a second, we shouldn’t - or intending to suggest that your Honour can artificially bring the head sentence - - -

    HER HONOUR:   No.

    MS KER:   - - - under 5 years to avoid the consequences of the mandatory.

    HER HONOUR:   I appreciate that that is not what you are submitting.

19. The concession was properly made.  As this Court stated in Tran v The Queen[32], the existence and consequence of a statutory minimum non-parole period will not govern the question whether to fix a non-parole period or make an order suspending sentence.  That is so even where the application of the statutory minimum to the head sentence properly fixed would require a period of actual imprisonment beyond that which the sentencing court considers the minimum necessary having regard to the circumstances of the offending and the offender. 

20. In R v Carrall[33], the Queensland Court of Appeal dealt with an application for leave to appeal in which the offender had been sentenced to imprisonment for 10 years for trafficking in dangerous drugs.  A head sentence of that duration carried with it an automatic declaration as a serious violent offender and a minimum non-parole period of 80 percent.  The relevant ground of appeal was that the sentence was manifestly excessive.  President Sofronoff, with whom the other members of the Court agreed, stated (footnotes omitted):[34]

    As I apprehend this application, it involves a plea that the sentence of 10 years imprisonment may not be too long, because the alternative for which Mr Kimmins advocates is for a sentence of nine and a half years on the first count and six months on the second, to be served cumulatively. The thrust of the application is that the requirement to serve 80 per cent of the term is excessive.

    A sentencing judge must have regard to the mandatory non-parole period that is invoked by the operation of a declaration of a serious violent offence. Such consideration may result in a decision to impose a sentence at the lower end of the range. However, a sentencing judge is not obliged in such a case to sentence at the lower end of the range.

    …

    Nor can the submission that the sentence was manifestly excessive be accepted. Indeed, both at first instance and on appeal the applicant submitted that a sentence of 10 years was appropriate but advocated for such a sentence to be structured so that it resulted from two sentences of nine and a half years and of six months, respectively, to be served cumulatively.

    This is an invitation to the Court to structure a sentence to evade the consequence for parole that is mandated by the statute. This is something that the Court will not do.

21. We respectfully concur with the statement of principles contained in those passages.  That is, a sentencing court may, but is not required to, fix a head sentence at the lower end of the range having regard to the operation of a mandatory minimum non-parole period, but cannot fix a head sentence which is outside range[35]; and it is not permissible for a sentencing court to structure or otherwise fix a sentence in order to avoid the application of a mandatory minimum non-parole period. 

22. In further parallel with the present matter, the proposed grounds of appeal in Carrall also included that the sentencing judge had failed to take into account the offender’s steps towards rehabilitation in the period following his arrest and the grant of bail.  The Court dealt with that submission in the following terms:[36]

    The applicant also submitted that Lyons SJA failed to take into account his substantial steps towards rehabilitation. The applicant had a long-term addiction to drugs. Since his arrest he had abstained from using drugs. He had good character references. His steps towards rehabilitation proceeded over a period of three years between arrest and sentence. The applicant contends that her Honour omitted to make mention of these matters in the course of her sentencing remarks and, as a consequence, it should be inferred that she failed to take them into account.

    The point loses its force when it is appreciated that, as the submission was put below, it amounted to little more than pointing out that the applicant had not reoffended during the period of delay and had weaned himself off drugs. It cannot be inferred that her Honour was not aware of these matters, they having been the subject of discussion a few minutes before the applicant was sentenced. They did not bear mention because, in the context of a serious case of drug trafficking in which the applicant had conceded that a sentence of 10 years was within the appropriate range, they were largely immaterial.

1. Even leaving aside the reduced emphasis on rehabilitation in serious drug trafficking cases, there is little doubt that but for the legislative amendment the previous minimum non-parole period of 50 percent would have been fixed across the head sentence in the present case.  That would have resulted in a non-parole period of two years and 10 months, which would have been less than that fixed in Roe.  However, once the sentencing judge reached the conclusion that a head sentence in excess of imprisonment for five years was warranted, the legislation took over and dictated what the minimum non-parole period should be.  It was not permissible for the sentencing judge to anticipate or evade that statutory consequence by imposing a sentence less than considered appropriate in an effort to maintain parity with non-parole periods fixed in earlier cases.[37] 

2. It is not the place or function of this Court to express opinion or pass judgment on the merits of the legislative policy which underpinned the enactment of a mandatory minimum non-parole period of 70 percent for offences of this nature.  However, what can be said is that mandatory minima of this type will, in cases such as the present, inevitably interfere with the courts’ capacity to maintain parity and consistency in sentencing.[38]  If there is injustice in this case, it is as a consequence of the operation of the mandatory minimum non-parole period.

   Disposition

3. Leave to appeal is granted and the appeal is dismissed.

   _________________________________

[1]      Sentencing Act 1995 (NT), s 55.

[2]      Sentencing Act, s 40(1).

[3]      The Queen v Roe [2017] NTCCA 7.

[4]See, for example, Clarke v The Queen [2019] NTCCA 2 at [51]; Whitlock v The Queen [2018] NTCCA 7; Bara v The Queen [2016] NTCCA 5 at [75]-[76]; Emitja v The Queen [2016] NTCCA 4 at [39]-[40]; and Morrow v The Queen [2013] NTCCA 7 at [36].

[5]Appeal Book (AB) 37-42.

[6]Fillipou v The Queen (2015) 89 ALJR 776; R v Olbrich (1999) 199 CLR 270.

[7]AB 34.

[8]       The Queen v Falzon (2018) 92 ALJR 701 at [1], citing Sultana (1994) 74 A Crim R 27 at 28-29, 36-37; Blackwell (1996) 87 A Crim R 289 at 290, 294; R v Edwards [1998] 2 VR 354 at 367-370; Evans v The Queen [1999] WASCA 252 at [31], [38], [65], [66]; Radi v The Queen [2010] NSWCCA 265 at [39]; Tasmania v Roland (2015) 252 A Crim R 399 at 401-402, R v McGhee (1993) 61 SASR 208 at 210-211. To the extent that the reasons of the majority of this Court in Lewis (1989) 46 A Crim R 365 are to different effect, the reasoning of Rice J in dissent has ultimately prevailed in subsequent authority.

[9]Sultana (1994) 74 A Crim R 27 at 28-29.

[10]AB 12.

[11]AB 22.

[12]AB 70.

[13]R v Bernath [1997] 1 VR 271 at 277 per Calloway J, approved by the Court of Appeal of the Supreme Court of Victoria in DPP v Castro [2006] VSCA 197 at [17], and approved by the Northern Territory Court of Criminal Appeal in Johnson v The Queen [2012] NTCCA 14 at [25].

[14]    Noakes v The Queen [2015] NTCCA 7 at [15] citing Director of Public Prosecutions (DPP) (Vic) v Terrick; DPP v Marks: DPP v Stewart [2009] VSCA 220; 24 VR 457 at 459-460; Whitlock v The Queen [2018] NTCCA 7 at [15].

[15]AB 33-34.

[16]    See, for example, R v Indrikson [2014] NTCCA 10 at [30]; The Queen v Roe [2017] NTCCA 7 at [53]-[55]; Edmonds v The Queen [2019] NTCCA 1 at [21].

[17]    The Queen v Roe [2017] NTCCA 7.

[18]    The Queen v Roe [2017] NTCCA 7 at [98].

[19]    The Queen v Roe [2017] NTCCA 7 at [62].

[20]    Edmonds v The Queen [2019] NTCCA 1 at [25]-[26].

[21]AB 22-23.

[22]    The Queen v Kilic (2016) 339 ALR 229 at [19].

[23]Applicant's Outline of Argument dated 9 December 2019 at [26].

[24]Wiren v The Queen (1996) 5 NTLR 211 at 220.

[25]    Daniels v The Queen (2007) 20 NTLR 147 at [29].

[26]    Wong v The Queen (2001) 207 CLR 584 at 608; Green v R (2011) 244 CLR 462 at [28].

[27]Lowndes v The Queen (1999) 195 CLR 665 at [15].

[28]Markarian v The Queen (2005) 228 CLR 357 at 371.

[29]The amendments were introduced by the Justice Legislation Amendment (Drug Offences) Act 2016 (NT), which also made substantial amendments to the Misuse of Drugs Act and came into effect on 18 July 2016.

[30]The head sentence would have exceeded five years even if the sentencing judge had allowed a discount of 25 percent on account of the guilty plea and some finding of genuine remorse. 

[31]AB 23.

[32]Tran v The Queen [2019] NTCCA 12 at [40].

[33]R v Carrall [2018] QCA 355.

[34]R v Carrall [2018] QCA 355 at [17]-[18], [22]-[23].

[35]See also R v B; ex parte A-G [2000] QCA 110 at [32].

[36]R v Carrall [2018] QCA 355 at [20]-[21].

[37]R v Crossley [1999] QCA 223.

[38]R v Bojovic [1999] QCA 206 at [34].