R v Day

Case [2004] NTCCA 2 10 May 2004

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The Queen v Day [2004] NTCCA 2

PARTIES: THE QUEEN

DAY, Stephen Clifford

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 2003

DELIVERED: 10 May 2004

HEARING DATES: 31 March 2004

JUDGMENT OF: MARTIN (BR) CJ, MILDREN AND THOMAS JJ

CATCHWORDS:

CRIMINAL LAW - appeal - Crown appeal - whether sentence manifestly inadequate - whether errors of fact made - offences committed after completion of a Home Detention Order - whether appellate court should interfere with sentence

Fox and Freiberg, Sentencing, 2nd ed, par 3.706 and par 3.803

Criminal Appeal Act 1912 (NSW) s 5D; Criminal Code s 414(1)(a); Misuse of Drugs Act (NT), s 5(1), s 5 (2)(a)(iv), s 5(2)(b)(iii), s 37(2) and s 37(3); Sentencing Act s 5(2)(h)

Duthie v Smith (1992) 83 NTR 21 at 28, applied

Everett v The Queen (1994) 181 CLR 295 at 302; Griffiths v The Queen (1976-1977) 137 CLR 293; Leroy (1984) 13 A Crim R 469 at 474; Maynard v O'Brien (1991) 78 NTR 16 at 22; Osenkowski (1982) 5 A Crim R 394; R v Allpass (1993) 72 A Crim R 561; R v Morton (2001) 11 NTLR 97; R v Hernando (2002) 136 A Crim R 451; R v Portolesi (1988) 48 SASR 417; R v Tait and Bartley (1979) 46 FLR 386, 24 ALR 473; Reg v Wilson (1981) 28 SASR 362 at 367-368; Raggett, Douglas and Miller (1990) 50 A Crim R 41, (1990) 101 FLR 323; The Queen v McKaye (1982) 30 SASR 312 at 317,318; The Queen v Palliaer (1984) 35 SASR 569 at 571,573; W v March (1983) 35 SASR 333 at 336; Fejo v Ilett; Wilton v Ilett ((SC) (NT), 26 February 1991, unreported); Ireland (1987) 49 NTR 10, 29 A Crim R 353, referred to

R v Choon Sien Tee (1993) 61 SASR 501 at 505, considered

R v Markarian [2003] NSWCCA 8; BC200300148; The Queen v Le Cerf (1975) 13 SASR 237 at 239-40, followed

REPRESENTATION:

Counsel:
Appellant: WJ Karczewski QC
Respondent: J Lawrence

Solicitors:
Appellant: DPP
Respondent:

Judgment category classification: B
Judgment ID Number:
Number of pages: 27

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

The Queen v Day [2004] NTCCA 2
No. CA 17 of 2003

BETWEEN:

THE QUEEN
Appellant

AND:

STEPHEN CLIFFORD DAY
Respondent

CORAM: B R MARTIN CJ, MILDREN AND THOMAS JJ

REASONS FOR JUDGMENT

(Delivered 10 May 2004)

Martin (BR) CJ:
[1] This is an appeal by the Director of Public Prosecutions ("the Director") against a sentence of two years imprisonment, suspended immediately, imposed for three offences against the Misuse of Drugs Act ("the Act").
[2] The three offences were all committed within a nine day period in February 2003. On each occasion the respondent supplied a quantity of drugs to a registered informant. I gratefully adopt the summary of…

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 R v Day

Details

AGLC: R v Day [2004] NTCCA 2
Case: [2004] NTCCA 2
Decision Date: 10 May 2004

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against a sentence imposed on the respondent, Stephen Clifford Day, for three offences under the Misuse of Drugs Act. The respondent had been sentenced to two years imprisonment, suspended immediately, for supplying drugs to a registered informant over a nine-day period. The Director argued that the suspended sentence was manifestly inadequate and that the sentencing judge had made errors of fact and principle in imposing it.

The Court of Criminal Appeal of the Northern Territory was required to determine whether the sentence imposed was manifestly inadequate, whether the sentencing judge had erred in his application of sections 37(2) and (3) of the Misuse of Drugs Act, and whether the circumstances of the offence and the offender qualified as "particular circumstances" to justify suspending the mandatory minimum period of imprisonment. The court also considered the relevance of the respondent's prior criminal history and whether the current offending could be characterised as an "aberration."

The court reasoned that the sentencing judge had erred in treating the respondent as a first offender, given his extensive prior offending, which included dishonesty offences and drug possession charges. It was held that the respondent's prior record meant he was not entitled to credit for good character or absence of relevant prior offending. Furthermore, the court found that the current offending, involving facilitating drug transactions with contemplation of future supplies, could not reasonably be described as an aberration. The court also analysed the meaning of "particular circumstances" under section 37(2) of the Act, adopting the interpretation that such circumstances must be "sufficiently noteworthy or out of the ordinary" to warrant a non-custodial sentence, and concluded that the respondent's circumstances did not meet this threshold.

Consequently, the appeal was allowed. The order for the immediate suspension of the sentence was quashed, and the court imposed a sentence of two years imprisonment, to be suspended after the respondent had served two months. The operational period of the suspension was set at three years, commencing from an earlier date.

Orders