R v Amital

[2015] NTCCA 1

R v Amital [2015] NTCCA 1

PARTIES:  THE QUEEN

v

AMITAL, James

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

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 1 of 2015 (21408642 & 21428425)

DELIVERED:  9 February 2015

HEARING DATES:  9 February 2015

JUDGMENT OF:  RILEY CJ, SOUTHWOOD AND

HILEY JJ

APPEALED FROM:  BARR J

CATCHWORDS:

CRIMINAL LAW – Sentencing – Crown appeal against sentence – manifest inadequacy – supply of cannabis in an Aboriginal community – appeal allowed

R v Cavanagh-Novelli [2014] NTCCA 21 applied

REPRESENTATION:

Counsel:

Appellant:M W Nathan

Respondent:  J Hunyor and A Tucker

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:    B

Judgment ID Number:  Court

Number of pages:  7

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

R v Amital [2015] NTCCA 1

No. (21408642 & 21428425)

BETWEEN:

THE QUEEN

Appellant

AND:

JAMES AMITAL

Respondent

CORAM: RILEY CJ, SOUTHWOOD AND HILEY JJ

REASONS FOR JUDGMENT

(Delivered ex tempore 9 February 2015)

THE COURT:

1. This is a Crown appeal against sentence.

2. Following pleas of guilty, on 1 December 2014 the respondent was sentenced to a total effective sentence of 11 months imprisonment to be suspended after three months, for two counts of supplying cannabis plant material in an Indigenous community. An operational period of 18 months from the date of the respondent’s release from prison was specified.

3. The maximum penalty for each count was imprisonment for nine years. The quantity of cannabis plant material supplied for count one was 112 grams. The quantity of cannabis plant material supplied for count two was two joints of cannabis.

4. The Crown relies on the ground of appeal that the sentence was manifestly inadequate in all the circumstances of the case. The Crown abandoned a further ground of appeal that the sentencing judge erred in ordering that the sentence be suspended instead of fixing a non-parole period.

   The facts

5. The facts of the case are as follows.

6. The respondent is 46 years of age. He lives at Wadeye. He is an associate of Quentin Hiko who resides in Darwin.

7. On 2 November 2013 the Police conducted Operation Elba. The operation included monitoring the telecommunications used by Mr Hiko and physical surveillance of him and his associates.

8. Sometime between 1 and 23 December 2013, Mr Hiko supplied 112 grams of cannabis to the respondent at Woolworths, Palmerston and he told the respondent to sell the cannabis for him.

9. The respondent took the cannabis to Wadeye where he sold the cannabis in small bags for either $30 or $50 to residents of Wadeye. The $50 bags contained .5 grams of cannabis.

10. On 23 December 2013 the respondent contacted Mr Hiko and told him that he had finished selling the cannabis which Mr Hiko provided. They agreed to meet at the Casuarina Shopping Centre where the respondent gave Mr Hiko $9000 which was obtained from selling the cannabis.

11. On 20 February 2014 the respondent was arrested at Wadeye and was taken to the police station where he was interviewed by the police. He made full admissions to the offence. He was charged and bailed.

12. On 16 June 2014 the respondent drove a motor vehicle to lot 358 Wadeye which is the home of Mr John Alliung. Mr Alliung asked the respondent if he had any cannabis. The respondent held out a rolled joint and told him, “Yes, I’ve got 50.”

13. Mr Alliung gave the respondent $100 and asked if he could have two rolled joints. He dropped the joints on the ground when he saw a police vehicle approaching. The police stopped and investigated what was happening. They could smell cannabis and they searched the respondent’s motor vehicle. During the search, a child’s back pack was found on the back seat of the motor vehicle. The bag contained clip seal bags of cannabis and pre-rolled joints of cannabis. The contents were later analyzed and found to contain 33.10 grams of cannabis plant material.

14. The respondent was searched and $250 was found in his back pocket. He was arrested and taken to the police station.

15. He committed the second offence while on bail for the first offence.

    Subjective circumstances

16. The respondent was born at Finniss River Station on 21 November 1968.

17. The respondent attended Berrimah Primary School until year seven. He can read and write a little bit.

18. After leaving school the respondent spent some time out bush and then moved to an outstation near Jabiru where he made money hunting buffalos. He then went to Woolaning where he did some pig shooting. From the late 1980s he spent time in Darwin. During this period he would occasionally return to Wadeye.

19. About 13 years ago the respondent met his partner in Wadeye. They have been together since then. They have mainly lived at Wadeye with short periods at the respondent’s parents’ home at Knuckey Lagoon.

20. The respondent has two children aged 5 and 12 years respectively.

21. In early 2014, following his charge for the first offence, the respondent obtained work with the remote School Attendance Strategy. He assisted in getting children to attend school by either walking or driving them to school. However, his employment was terminated because of these offences.

22. The respondent has an extensive criminal record commencing in 1985 consisting of stealing, supply dangerous drugs in community, bring liquor into a prescribed area and numerous driving offences. On 15 October 2012 he was convicted by the Court of Summary Jurisdiction of supplying a dangerous drug in an Aboriginal Community and possessing a traffickable quantity of cannabis on 14 October 2012. He was sentenced to three months imprisonment. On 5 May 2006 he was convicted by the Court of Summary Jurisdiction of supplying a traffickable quantity of cannabis and possessing a traffickable quantity of cannabis on 14 March 2006. He was sentenced to 28 days imprisonment which was suspended after he served seven days in prison. He has breached a suspended sentence on two occasions and a good behaviour bond on two occasions.

23. When passing sentence, the sentencing Judge made the following remarks. The respondent was a very important link in the chain of supply and distribution. He was the distributor on the ground, engaging in direct sales. He had easy access to consumers of cannabis in the Wadeye Community.

24. The probation and parole officer, who prepared the supervision assessment for the sentencing Judge, reported that:

    The offender stated money as a motivating factor behind this offence. The offender was also able to identify status among his peers and fear of “being dobbed in for not supplying drugs” as compelling factors in this offence.

    Consideration

25. The issue in the appeal is whether the total sentence is manifestly inadequate.

26. The applicable principles for considering whether a sentence is manifestly inadequate were recently restated by this Court in R v Cavanagh-Novelli[1]. A sentence is not to be disturbed unless error in the exercise of the Court’s discretion is shown. Absent specified error, a sentence is not to be interfered with unless the sentence is unreasonable, plainly unjust or manifestly wrong. The sentence must be shown to be so disproportionate to the seriousness of the crime as to shock the public conscience and demonstrate error in point of principle.

27. In our opinion, the sentences imposed on the respondent were manifestly inadequate. The drugs were supplied in an Aboriginal community in the context of a commercial enterprise. The offending was planned and organised. The respondent was a very important link in the chain of supply and distribution. The respondent had easy access to the members of the Aboriginal community and he engaged in the activity for money among other things. The respondent is a repeat offender who has largely lost the entitlement to leniency. He committed the second offence while on bail for the first offence and he committed similar offences on 14 October 2012. Such offences are prevalent and cause considerable harm in Aboriginal communities.

28. The appeal should be allowed and the respondent should be resentenced.

    Resentence

29. The appeal is allowed. The sentences imposed on the respondent by the learned sentencing Judge are set aside.

30. The respondent is sentenced to an aggregate sentence of 15 months imprisonment. The sentence is back dated to 20 November 2014 to reflect the time that the offender has been in custody for these offences. A non-parole period of nine months is fixed. The non-parole period is also back dated to 20 November 2014.

31. The offender has been accorded a discount of 25 per cent as against the sentence that would have been imposed if he had not pleaded guilty to both of the offences.

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[1] [2014] NTCCA 21 at [12].