R v Messell - [2010] NTCCA 12

R v Messell [2010] NTCCA 12
PARTIES:THE QUEEN

v
MESSELL, Shane Leslie

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 12 of 2010 (20929772)
DELIVERED:  20 July 2010
HEARING DATES:  20 July 2010
JUDGMENT OF:  MARTIN (BR) CJ, RILEY AND BLOKLAND JJ
APPEAL FROM:  KELLY J
CATCHWORDS:
CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE
Criminal sentencing and procedure – whether sentence manifestly inadequate and reduction excessive – matters for mitigation – double jeopardy – appeal dismissed.
Misuse of Drugs Act s 8(1), s 8(2)(c), s 5(1), s 5(2)(b)(iii), s 9(1) and s 9(2)(d).
Daniels v The Queen (2007) 20 NTLR 147, applied.
R v Riley (2006) 161 A Crim R 414; R v Osenkowski (1982) 30 SASR 212, referred to.

REPRESENTATION:
Counsel:
Appellant:R Wild QC
Respondent:  J Tippett QC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:      A
Judgment ID Number:  Mar1015
Number of pages:  13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Messell [2010] NTCCA 12

No. CA 12 of 2010 (20929772)
BETWEEN:

THE QUEEN

Appellant

AND:

SHANE LESLIE MESSELL

Respondent

CORAM: MARTIN (BR) CJ, RILEY AND BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 20 July 2010)
The Court:

This is a Crown appeal against an aggregate sentence of imprisonment for 18 months, suspended after service of 28 days, imposed for three drug offences. The sole ground of appeal is that the sentence was manifestly inadequate.
For the reasons that follow, notwithstanding that the sentence was manifestly inadequate, the appeal is dismissed.
Facts
On 2 September 2009 police obtained a warrant enabling them to intercept communications from a mobile phone used by the respondent’s co-offender. The following day police executed search warrants at various premises and arrested relations of the respondent’s co-offender. Later that morning police intercepted a call from the co-offender to the respondent in which the co-offender told the respondent to get rid of everything. In addition, text messages were sent from the co-offender’s mobile phone to the same effect.
That afternoon, police stopped and searched a work van being driven by the respondent. In the van they found numerous empty clipseal bags and a package labelled “bath salt” containing white powder residue which was later found to include traces of 4-methylmethcathinone, a dangerous drug under the Misuse of Drugs Act. Subsequently, as a result of information given by the respondent to police, a search was conducted of a house which the respondent had used in the commission of drug crimes. Police found approximately 1400 capsules containing powder, diary notes in the form of a ledger, scales and handwritten notes concerning the filling of capsules.
The respondent subsequently participated in an interview with police. He fully co-operated and, from the admitted Crown facts, the learned sentencing Judge summarised the respondent’s admissions in the following terms:
“a.You were employed by AJZ to…

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 Messell

Details

AGLC: R v Messell [2010] NTCCA 12
Case: [2010] NTCCA 12
Decision Date: 20 July 2010

CaseChat Overview and Summary

The appeal concerned the adequacy of a sentence imposed on the respondent, R v Messell, before the Court of Criminal Appeal of Western Australia. The Crown appealed against the sentence, arguing it was manifestly inadequate. The respondent had pleaded guilty to charges related to the possession and preparation of dangerous drugs for sale, specifically involving the filling of approximately 7,000 capsules with a substance later identified as containing 4-methylmethcathinone.

The central legal issue before the Court was whether the sentence imposed was so inadequate as to be manifestly unjust, thereby justifying the Court's intervention on appeal. This involved considering the respondent's level of involvement in the drug offending, his full cooperation with police, and the principle of double jeopardy, given that the respondent had already served the sentence imposed by the sentencing judge.

The Court acknowledged that the sentence imposed was indeed manifestly inadequate, particularly in light of the quantity of drugs involved and the respondent's role in their preparation. However, the Court also recognised the significant leniency that was warranted due to the respondent's full cooperation and admissions, which greatly assisted the prosecution. Crucially, the Court gave considerable weight to the principle of double jeopardy, noting the respondent had already served the sentence and faced the prospect of re-imprisonment.

Ultimately, the Court dismissed the Crown's appeal. While finding the sentence to be manifestly inadequate, it concluded that this was a special case where the purposes of the appeal could be satisfied by indicating the inadequacy of the sentence and that it should not be regarded as a precedent. The Court deemed it unnecessary and inappropriate to interfere with the sentence and require the respondent to serve further imprisonment, citing the special circumstances and the principle of double jeopardy.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, notwithstanding that the sentence was manifestly inadequate, the appeal is dismissed.Facts On 2 September 2009 police obtained a warrant enabling them to intercept communications from a mobile phone used by the respondent’s co-offender. The following day police executed search warrants at various premises and arrested relations of the respondent’s co-offender. Later that morning police intercepted a call from the co-offender to the respondent in which the co-offender told the respondent to get rid of everything. In addition, text messages were sent from the co-offender’s mobile phone to the same effect. That afternoon, police stopped and searched a work van being driven by the respondent. In the van they found numerous empty clipseal bags and a package labelled “bath salt” containing white powder residue which was later found to include traces of 4-methylmethcathinone, a dangerous drug under the Misuse of Drugs Act. Subsequently, as a result of information given by the respondent to police, a search was conducted of a house which the respondent had used in the commission of drug crimes. Police found approximately 1400 capsules containing powder, diary notes in the form of a ledger, scales and handwritten notes concerning the filling of capsules. The respondent subsequently participated in an interview with police. He fully co-operated and, from the admitted Crown facts, the learned sentencing Judge summarised the respondent’s admissions in the following terms:“a.You were employed by AJZ to work on a part-time basis from his carpet cleaning business.b.In about June 2009, you accepted an invitation from AJZ to make extra money by helping him fill a quantity of capsules with a powder that you believed to be an illegal substance.c.Over four occasions since June 2009, you packaged a quantity of powder into capsules at AJZ’s request.d.The process involved initially using a capsule-filling device to put powder into capsules, all of which was provided by AJZ. Towards the end of the offending, you were provided with caffeine and a mixing bowl in addition to the powder and asked by AJZ to mix the caffeine and powder before filling the capsules with the mixture.e.On the first occasion, which was on a date unknown in the last week of June 2009, you were provided with a quantity of powder by AJZ, which you understood to be an illegal substance. AJZ told you to put the powder into capsules and provided you with the capsules and the capsule-filling device. He also provided you with scales and a quantity of ziplock plastic bags and instructed you to work out how much mixture was contained in a hundred-filled capsules.f.You did the capsule-filling in your bedroom at your father’s house over a period of about a week. During this time, you filled 400 to 500 capsules and worked out that 100 capsules contained 34 grams of mixture. You still had more than half the powder remaining, but told AJZ that you did not feel comfortable filling the capsules in your father’s home. AJZ later collected the finished capsules from you and paid you $200 cash for the job. AJZ told you to hold on to the remaining powder.g.On 10 July 2009, AJZ booked you in to the Darwin Central Hotel on Knuckey Street and instructed you to take the remaining powder and empty capsules there, and ‘Go flat out.’ You filled between 800 and 1000 capsules that night. AJZ collected the capsules later that night. You stated that you were paid an extra couple of hundred dollars for this work.h.You next filled capsules for AJZ on 31 July 2009 and 1 August 2009 at the Best Western Motel, Darwin Airport. AJZ had booked a room for you for two nights and provided you with a quantity of powder. You filled 1500 capsules over two days checking out of the hotel on 2 August 2009. AJZ collected about 1000 of the capsules before you checked out of the hotel and then collected the remaining 400 to 500 capsules from your home a few days later. You received $400 to $500 for doing this work.iThe fourth occasion was from 24 to 26 August 2009. You were again booked into the Best Western Motel by AJZ and provided with material and equipment in order to fill a quantity of capsules. This time, however, the powder was provided in a foil package labelled as ‘Bath Salts’. You confirm that this was the empty package found in your van on 3 September 2009.j.You stated that the bath salts package stated on the packaging that it weighed one kilogram and you were also provided with two 400-gram packages of caffeine, empty capsules and mixing bowls.k.That between 24 and 26 August 2009, you made a total of 4800 capsules from the ingredients supplied to you by AJZ. You filled 1600 capsules on the first night. AJZ collected 100 of those capsules on that night.l.On 25 August 2009, you filled 1800 capsules. At 5 pm on that day, a man you did not know came to the motel room and collected 200 capsules from you. Another man attended and collected 500 capsules from you at about 7 pm the same evening.m.On 26 August 2009, you used the last of the mixture and produced 1400 capsules. AJZ then attended at the hotel and collected 200 capsules, leaving 3800 with you, which you then took home. AJZ subsequently paid you $2000 for the capsule-filling done between 24 and 26 August 2009.n.Over the following weeks, AJZ called at your residence on two occasions collecting 1000 capsules on the first visit and 1400 on the second. The remaining 1400 were left with you and were seized by police on 3 September 2009. You stated that you took the 1400 capsules from AJZ’s work van and hid them inside a rolled up swag in your bedroom after you received the phone and SMS warnings from AJZ on 3 September 2009. You intended to hold the capsules until given further instructions by AJZ.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances the principle of double jeopardy is of particular importance. Having served the penalty which the sentencing Judge considered appropriate, the respondent now faces the prospect of both an increase in the penalty and having to interrupt his life and rehabilitation by re-entering prison.Conclusion For the reasons discussed, in our view this is a special case in which significant leniency was not only warranted, but was appropriate. Notwithstanding that too much leniency was afforded to the respondent, for the reasons that justified significant leniency and in recognition of the principle of double jeopardy, this is not one of those rare and exceptional cases in which the Crown appeal should be allowed. This is one of those cases where the purposes of the Crown appeal can satisfactorily be achieved by this Court indicating that the sentence was manifestly inadequate and should not be regarded as a precedent. In the special circumstances of this case, the message can be sent about the appropriate level of penalties and it is both unnecessary and inappropriate to interfere and now require the respondent to serve a further term of imprisonment. For these reasons, the appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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