CRIMINAL LAW
Jurisdiction, practice and procedure – judgment and punishment – totality principle – multi-jurisdictional offender – cultivation of cannabis – five years imprisonment – whether total period of sentencing is to be regarded as too severe – appeal dismissed.

Misuse of Drugs (NT); s 7(1); Sentencing Act (NT), s 53(1).

Mill v The Queen (1988) 166 CLR 59, p 63; R v Todd [1982] 2 NSWLR 517, pp 519-520; R v Harrison (1990) 48 A Crim R 197, pp 198-199; Postiglione v The Queen (1997) 189 CLR 295, p 308; Vlek v R [1999] WASCA 1038, paras 8 and 11; Serra v The Queen [2004] NTCCA 3, par 19, considered.

REPRESENTATION:

Counsel:
Appellant: S Cox QC
Respondent: M Carey

Solicitors:
Appellant: NTLAC
Respondent: DPP

Judgment category classification: A
Judgment ID Number: Mar0417
Number of pages: 19

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

Regina v The Queen [2004] NTCCA 9
No. CA 5 of 2004 (20306398)

BETWEEN:

JOSEPH RICHARD REGINA
Appellant

AND:

THE QUEEN
Respondent

CORAM: MARTIN (BR) CJ, MILDREN & BAILEY JJ

REASONS FOR JUDGMENT

(Delivered 12 November 2004)

Martin (BR) CJ:
[1] This is an appeal against a sentence of five years imprisonment imposed for the crime of cultivating a commercial quantity of cannabis plants contrary to s 7(1) of the Misuse of Drugs Act. The appellant also complains that the learned sentencing Judge erred in declining to fix a non-parole period.
Facts
[2] In mid October 1996 the appellant and his co-offender, S, travelled to an area approximately 150 kilometres southeast of Tennant Creek with the intention of establishing a campsite and cannabis plantation. They erected a camouflaged campsite and, between mid November 1996 and 23 July 1997, they planted and cultivated cannabis plants at the campsite and at other nearby sites.
[3] The appellant and S left the area before police attended on 25 July 1997. Five sites of cannabis cultivation were discovered by police. The summary of the facts related to each site given by the learned sentencing Judge was as follows:
“The first site was located about 3.3 kilometres to the east of the campsite and it consisted of 118 small cannabis seedlings, 559 large cannabis seedlings and 96 larger plants, about 5 foot in height.
Several of the plants were on a dripper system which was serviced by an above ground pool. Water was fed into the pool via a large poly-pipe and pumping station which led to a nearby waterhole. All the cannabis plants had been recently watered and were in good condition.

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 Regina v The Queen

Details

AGLC: Regina v The Queen [2004] NTCCA 9
Case: [2004] NTCCA 9
Decision Date: 12 November 2004

CaseChat Overview and Summary

The case of *Regina v The Queen* involved an appeal against a sentence of five years imprisonment imposed on Joseph Richard Regina by the Court of Criminal Appeal of the Northern Territory. The appellant was convicted of cultivating a commercial quantity of cannabis plants. He also appealed the sentencing judge's decision not to fix a non-parole period. The offending involved the establishment and cultivation of cannabis at multiple sites in a remote area of the Northern Territory, demonstrating a high degree of organisation and criminality.

The legal issues before the Court of Criminal Appeal were whether the total period of imprisonment, considering the appellant's extensive criminal history and prior sentences, was too severe under the totality principle, and whether the sentencing judge erred in declining to fix a non-parole period. The court was required to consider the appellant's long criminal record, including previous drug offences and an escape from lawful custody, and how these factors interacted with the current sentence and the principle of totality, particularly in light of the appellant's continuous period of custody since 1999.

The court reasoned that the sentencing judge had ample grounds to conclude that the appellant was a hardened offender with no remorse, for whom personal deterrence and public protection were paramount, justifying the refusal to fix a non-parole period. Regarding the totality principle, the court acknowledged the complexity arising from the appellant's escape and the inter-jurisdictional nature of his offending and sentencing. While the sentencing judge had imposed a "stern" sentence, the Court of Criminal Appeal considered whether the aggregate period of custody, which would amount to nine years and three months, was just and appropriate, having regard to the totality of the appellant's criminal conduct and the principles established in cases such as *Mill v The Queen* and *R v Todd*.

Ultimately, the Court of Criminal Appeal dismissed the appeal. It found that the sentencing judge had correctly exercised discretion in declining to fix a non-parole period, given the appellant's history and lack of remorse. While the totality principle was applicable, the court concluded that the total period of imprisonment was not so severe as to warrant interference, finding that the sentencing judge's remarks indicated a focus on imposing a stern sentence rather than overlooking the totality principle.

Orders