Rigby v Kotis
[2018] NTSC 48
•25 July 2018
CITATION:Rigby v Kotis [2018] NTSC 48
PARTIES:RIGBY, Kerry
v
KOTIS, Elexis
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 26 of 2017 (21708472)
DELIVERED: 25 July 2018
HEARING DATE: 27 November 2017
JUDGMENT OF: Hiley J
CATCHWORDS:
CRIMINAL LAW – APPEAL – CROWN APPEAL AGAINST SENTENCE – General principles concerning Crown appeals against sentence – Residual discretion to dismiss appeal notwithstanding a finding of manifest inadequacy - Application of proviso under s 177(2)(f) of the Local Court (Criminal Procedure) Act (NT) – Sentence by way of fine manifestly inadequate – Head sentence of imprisonment necessary - Appeal allowed
CRIMINAL LAW – DRUG OFFENCES – SENTENCING - Intentionally possess and supply a trafficable quantity of a Schedule 1 drug – Cocaine – Factors relevant to the assessment of moral culpability and objective seriousness of offending – Application of principles in R v Roe - Importance of punishment, denunciation and general deterrence - Comparative sentences relating to other Schedule 1 drugs - Sentence by way of fine manifestly inadequate – Head sentence of imprisonment necessary - Appeal allowed
Criminal Code (Tas) s 402; Criminal Code (NT) s 411, s 414; Criminal Appeals Act 2004 (WA) s 40, s 31; Criminal Appeal Act 1912 (NSW) s 5D, s 6; Criminal Code (Qld) s 668E, s 669A; Criminal Procedure Act 2009 (Vic); Local Court (Criminal Procedure) Act (NT) s 163, s 177; Misuse of Drugs Act 1991 (NT) s 5A, s 7A, s 37.
Emitja v The Queen [2016] NTCCA 4; Green v The Queen [2011] HCA 49; Harvey v Bofilios [2017] NTSC 68; Noakes v The Queen [2015] NTCCA 7; Whitehurst v The Queen [2011] NTCCA 11; R v Ellis (1986) 6 NSWLR 603; R v Mossman [2017] NTCCA 6; R v Osenkowski (1982) 30 SASR 212; R v Renwick & Johnston [2013] NTCCA 3; R v Roe [2017] NTCCA 7; R v Wilson [2011] NTCCA 9, applied.
CMB v Attorney General for New South Wales [2015] HCA 9; DPP v Terrick, DPP v Marks, DPP v Stewart (2009) 24 VR 457; Director of Public Prosecutions v Chatters [2011] TASCCA 8; Director of Public Prosecutions v Nathan Karazisis [2010] VSCA 350; Griffiths v R [1977] HCA 44; Everett v The Queen [1994] HCA 49; R v JW [2010] NSWCCA 49; R v Riley [2006] NTCCA 10; Griffiths v R (1977) 137 CLR 293; Lacey v Attorney-General (Qld) [2011] HCA 10; R v Borkowski (2009) 195 A Crim R 1; R v Carey [1998] 4 VR 13; R v Hernando [2002] NSWCCA 489; R v Lacey; ex parte Attoney-General (Qld) [2009] QCA 274; R v Martyn [2011] NTCCA 13; The State of Western Australia v Munda [2012] WASCA 164; The State of Western Australia v Marchese [2006] WASCA 153; The Queen v Cavanagh-Novelli [2014] NTCCA 21, referred to.
R v Alexander Hatzivalsamis & Anor SCC 21708473 and 21708479; R v Art Lane SCC 21443088; R v. Chantall Dart SCC 21716698; R v Cliff Domaschenz SCC 21434754 and 21414056; R v Gwenda Walsh SCC 21316330 and 21424741; R v Jamie Stewart SCC 21555577 and 21451479; R v John Taylor SCC 21717606; R v Joseph Goryan SCC 21439539; R v Kellyanne Skinner SCC 21716700; R v Mathew Daly & Anor SCC 21653895; 21653896 and 21754356; R v Melissa Anne Byrnes SCC 21526451; R v Michelle Kells SCC 21757113; R v Ms Gird SCC 21413390; R v Peter Talbot SCC 21543167; R v Ryan Bloedorn SCC 21654058; R v Shane Tapp SCC 21635967; R v Stephen Martins SCC 21556129, referred to.
REPRESENTATION:
Counsel:
Appellant:T Grealy
Respondent: J Tippett QC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: Maleys Barristers & Solicitors
Judgment category classification: B
Judgment ID Number: Hil1807
Number of pages: 30
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINRigby v Kotis [2018] NTSC 48
No. LCA 26 of 2017 (21708472)
BETWEEN:
KERRY RIGBY
Appellant
AND:
ELEXIS KOTIS
Respondent
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 25 July 2018)
Introduction
The appellant has appealed against the sentence imposed upon the respondent by the Local Court on 19 May 2017. The respondent pleaded guilty to:
(a)intentionally possessing a trafficable quantity of a Schedule 1 drug, namely cocaine, contrary to s 7A(1) of the Misuse of Drugs Act; and
(b)intentionally supplying less than a commercial quantity of a Schedule 1 drug, namely cocaine, between 1 February 2015 and 15 February 2017, contrary to s 5A(1) of the Misuse of Drugs Act.
He was convicted of both offences and sentenced to an aggregate fine of $3000, with two victim’s assistance levies of $150 each. A forfeiture order was also made, the respondent having consented to forfeiture of $4000 cash, scales, spoon, cutting agent and clip seal bags.
The quantity of cocaine involved was 33.7 grams. That is almost 17 times the amount prescribed under the Misuse of Drugs Act as a trafficable quantity (2 grams). The maximum penalty for the possession of a trafficable quantity of a Schedule 1 drug is seven years imprisonment, and for intentionally supplying a trafficable quantity of cocaine 14 years imprisonment.[1]
Section 37(2) of the Misuse of Drugs Act imposes a mandatory requirement that a person convicted of an offence that carries a penalty of seven years imprisonment or more serve a term of actual imprisonment of not less than 28 days unless the Court, having had regard to the particular circumstances of the offence or the offender, is of the opinion that such a penalty should not be imposed.
The appellant appeals on the ground that the sentence was manifestly inadequate in all the circumstances of the offending and the offender. Notwithstanding that it may have been open to the sentencing judge to find particular circumstances of the kind referred to in s 37(2) the fundamental contention on behalf of the appellant is that the sentence should have been imprisonment.
General principles concerning Crown appeals against sentence
It is fundamental that a trial judge’s exercise of the sentencing discretion is not disturbed on appeal unless error is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is inadequate or excessive. It interferes only if it is shown that the sentencing judge was in error. The error may appear in what the sentencing judge said during the proceeding or the sentence itself may be so inadequate or excessive as to manifest such error. It must be shown that the sentence was clearly and not just arguably inadequate or excessive.[2]
It is important to distinguish between Crown appeals against sentence and appeals by convicted persons. Per French CJ, Crennan and Kiefel JJ in Green v The Queen[3] at [1]:
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”[4]. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the “residual discretion”.
In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender’s progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal.
The Northern Territory Court of Criminal Appeal referred to the purpose of Crown appeals in R v Renwick & Johnston[5] at [3]:
Crown appeals enable the courts to establish and maintain adequate standards of punishment for crime, to correct idiosyncratic views and to correct sentences which are so disproportionate to the seriousness of the crime as to “shock the public conscience”. The Crown is entitled to have sentences corrected which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards.
The principles in relation to Crown appeals in the Northern Territory were further considered recently by the Northern Territory Court of Criminal Appeal in R v Mossman[6]. The Court stated, at [8]:
Crown appeals against sentence should be a rarity brought only to establish some matter of principle…to lay down principles for the guidance of courts sentencing offenders. The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.
Avoidance of manifest inadequacy, then, will be a matter of principle which may support a challenge by the Crown on appeal.[7]
In Mossman the Court added that those principles do not replace the principle expressed by King CJ in R v Osenkowski[8] at [212] – [213], namely:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where the judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has been traditionally extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of an offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”[9]
The Court in Mossman also pointed out that even where manifest inadequacy is found the Court of Criminal Appeal retains a residual discretion as to whether a respondent should be resentenced. Their Honours said that the Court “will be slow to intervene where there is a countervailing factor which may warrant the exercise of the residual discretion.”[10] The Court quoted the following passage from the judgment of Riley CJ in R v Wilson[11] where his Honour had been discussing the effect of the removal of the double jeopardy rule:
Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.
In her written submissions counsel for the appellant referred to s 177(2)(f) of the Local Court (Criminal Procedure) Act and acknowledged that this Court retains a residual discretion to refuse to correct a sentence notwithstanding a finding of manifest inadequacy. Factors to be taken into account include those identified by Riley CJ in Wilson. Counsel contended that while some unfairness is inherent in any Crown appeal (in that the proceedings are prolonged), the unfairness is not such that it outweighs the community interest in ensuring sentences imposed are fair in all the circumstances. I shall return to this topic later in these reasons.
Relevant facts provided to the Local Court
Police had been investigating the distribution of cocaine in the Darwin region since May 2016 and had identified the respondent as a person involved in the supply of cocaine.
About a week before 10 February 2017 the respondent arranged for a package containing 28 grams, one ounce, of cocaine to be sent to him to his post office box located at the Darwin Post Office. He did that by contacting a source interstate. He sent the source $7500 to pay for the cocaine.
On Friday, 10 February 2017 police became aware of a suspicious parcel that had arrived at the Darwin Post Office addressed to a fictitious person Peter J Bond, at the respondent’s postal address. The respondent was seen attending the post office that morning and attempting to recover the parcel. He was told that it had been sent to another Post Office. Police seized the parcel and located inside it a vacuum sealed bag containing 27.62 grams of cocaine. After having it forensically analysed they removed the cocaine and replaced it with white powder.
On Monday 13 February the respondent was notified that the parcel was ready for collection and he attended the Darwin Post Office again. When asked for identification he said that he did not have any but that he was picking the package up on behalf of his brother-in-law, Peter J Bond. He took the parcel and put it in a black Volkswagen utility and drove to a shed at Winnellie that belonged to his father. He unwrapped the package and placed the zip lock bag containing the 28 grams of substituted white powder in the rear boot of a black sedan.
Shortly after that police went to the Winnellie address and found and seized the zip lock bag containing the 28 grams of white powder from the rear boot of the black sedan. They also seized two other zip lock bags, one containing 4 grams of cocaine and the other containing 2.8 grams of cocaine, a zip lock bag containing 7.43 grams of suspected cutting agent, a set of digital scales covered in a white substance, a small plastic spoon, and a large amount of empty clip seal bags.
Police also conducted searches at the respondent’s business premises in Coconut Grove and his home at Gardens Hill. At his home police located and seized $34,700 stored neatly into bundles of combinations of $1000 and $5000 in a safe located in the main bedroom.
The respondent was arrested and taken to the Darwin Police Station where he participated in an electronic record of interview. He made full admissions during that interview, stating that he had purchased the cocaine “to party with and have some fun”, “like save up because I had a birthday coming up.” He told police that the addressee of the package, Peter J Bond, was an alias and that he does not have a brother-in-law of that name. He said this was the second time he had purchased cocaine in this way.
The agreed facts record that over the past two years, on an irregular basis, the respondent sold cocaine to people in his small circle of close friends. He sold the cocaine for $300 a gram and would sometimes add keratin, a cutting agent, to make the cocaine last longer. He purchased the cocaine using money he kept in the safe at his home. He would purchase the cocaine either locally or from a supplier interstate and would pay approximately $4000 for half an ounce, being 14 grams, and $7500 for an ounce, being 28 grams. He would take the cash to purchase the cocaine from the money in his safe at home and would put any proceeds of sale back into the safe. He admitted that $4000 of the money that had been seized was drug-related and says that the balance of the money was money obtained from his wedding and a christening.
At the hearing the prosecutor referred to the large quantity of cocaine that was seized, the fact that appellant had been supplying cocaine over a two-year period as he had admitted in his record of interview and that he actively took steps to bring cocaine from interstate into Darwin with the intention of further supply in return for financial gain. The prosecutor contended that, irrespective of his good character, general deterrence required the imposition of a term of actual imprisonment.
Some discussion occurred between the prosecutor and the judge. His Honour noted that the supply was simply amongst friends and family rather than for the community. He also said that there was no suggestion that there was a commercial operation. All he was doing was recouping the money that he had spent rather than engaging in the activity as a profit-making exercise. At the most he made about $900 which paid for his share of the drugs.
Counsel for the respondent tendered a bundle of references and medical reports including results of urinalysis testing. Counsel spoke about his background including that he is a born and bred member of the Darwin community which includes his hard-working and well known parents who remain supportive of him, the fact that he runs his own restaurant business and employs eight or nine people, he has three young children, he is the primary breadwinner for the family and has always been a hard worker. He was 39 years of age with no criminal history. He has devoted a lot of time to performing community work and assisting others.
Counsel said that the respondent does not drink or smoke. His only vice has been the occasional use of cocaine which grew into a bit of a problem in the past two or three years and ultimately resulted in this offending. His admissions to the police resulted in the second of the two charges against him. He has been humiliated publicly including in the media, largely because of the general community interest in him and his parents.
His Honour’s reasons
His Honour said:
I take those matters into account. You find yourself in a very nefarious situation today. You have effectively destroyed your standing in the community by involving yourself in this matter as I have no doubt you are aware.
You have also now put yourself on the police watch list, so that if you are tempted to indulge in this type of behaviour again, you will almost certainly end up in prison. Certainly if you come back before this court for drug offences, you will end up in prison because there won’t be any possibility of finding particular circumstances on a second occasion. I am prepared to find them on this occasion, in particular, given your own prior good character but also because of the fact that you weren’t supplying generally or in a commercial way in the community but keeping it within house, if I can put it that way. And there does not appear to be have been any profit made of it as such.
Nevertheless, it is a serious offence, although this drug seems to be rarer these days in Darwin.
His Honour then proceeded to impose the sentences and order forfeiture of the $4000 and other items.
Submissions and consideration
Counsel for the appellant contended that her Honour failed to impose a sentence that reflected the seriousness of the offending and imposed a sentence which did not meet sentencing standards.
Counsel acknowledged that the fact that the judge’s reasons were fairly brief and said very little about his assessment of the offending is of less importance in this appeal where the appellant was not relying on a particular error on the part of the judge apart from manifest inadequacy. In an appeal for manifest inadequacy, it is not a question of whether the sentencing judge put too much or too little weight on a particular consideration, but rather:
…whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible – or necessary – for the appeal court to reach a conclusion on that question.[12]
Counsel submitted that the maximum penalties and mandatory sentencing requirements imposed by Parliament for both of these charges indicate that the offences are to be viewed as objectively serious.
Counsel referred to R v Roe[13] where the Court of Criminal Appeal considered the sentencing principles applicable to offending involving methamphetamine, also a Schedule 1 drug. Counsel contended that those principles are equally applicable to cocaine. In Roe the majority identified factors relevant to an assessment of moral culpability and objective seriousness of offending involving methamphetamine. These include 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 offending, the reward which the offender hoped to gain, the difficulty in detecting such offending and the quantity of drugs involved.
Referring to these factors counsel for the appellant contended that the instant offending involved the supply of the drug into the Darwin community over a period of two years. The supply included (on occasion) the importation of cocaine into the Northern Territory from interstate. The respondent’s role in the organisation was as a principal – albeit in a small supply operation. While the learned sentencing judge found that the respondent did not profit from the enterprise, it was clearly accepted during discussion with counsel that the respondent was at least supporting his own drug habit through the sale of cocaine. An inference could be drawn that the detection of the offending was difficult given it involved a police operation which ran from May 2016 to February 2017, when the respondent was apprehended. Subject to my comments below I accept those contentions.
Counsel also contended that in addition to the quantity of cocaine the subject of count 1 (33.43 grams), the amount the subject of count 2, namely the cocaine supplied over the previous two years, would also have been at the higher end of the non-commercial quantity. I accept this.
Counsel also contended that the judge seems to have put considerable weight on a finding that the respondent was supplying “in house” to family and friends rather than the broader community. She said:
[T]hat finding should not have materially reduced the assessment of the seriousness of the offending. Regardless of who the respondent was supplying to (be it people known to him or strangers), he was supplying a dangerous drug to members of the community. That he did so behind closed doors or in the privacy of his circle of friends only makes the offence more difficult to detect and increases the need for general deterrence. It does not mean that fewer people would have been supplied or that the amount of the drugs supplied would have been any less.
I disagree with the contentions concerning the significance of the fact that the respondent was only supplying the cocaine to family and friends. When the authorities refer to commercial drug operations which include the supply of drugs into the community they generally concern supply to unnamed and undisclosed people who are likely to supply some or all of the drugs to other members of the community. This was not the kind of commercial enterprise normally referred to in the authorities. Nor do I accept the contention that there is a greater need for general deterrence in circumstances such as the present. Rather there are likely to be far greater risks where dangerous drugs are supplied to persons unknown and thus a greater need in those circumstances for such conduct to be discouraged by strong sentences.
Counsel for the appellant also contended, and I accept, that the instant offending demonstrated a continuing attitude of disobedience to the law. On his own admissions and by pleading guilty to count 2 he acknowledged that he had been supplying cocaine for some two years.
Counsel for the appellant also referred to the various matters put in mitigation but contended that when weighed against the seriousness of his offending the resulting mitigation was minimal. Counsel referred to part of the sentencing remarks in Hatzivalsamis[14] where Southwood J said:
The weight to be given to rehabilitation, generally speaking, is lessened in cases such as this, particularly where offenders come from good backgrounds and were in meaningful employment making commensurate amounts of money.
Although that proposition cannot be gainsaid the circumstances in that case were distinguishable from the present. That matter concerned joint offending by Alexander Hatzivalsamis and Michelle Hatzivalsamis between August 2016 and January 2017. It involved at least 12 different transactions during that period involving the supply of cocaine to different people, each of which transaction was discovered by police during their surveillance activities of the offenders. On two different occasions the offenders were found to be in possession of significant quantities of cocaine, amounting in all to about 89 grams, which they had imported for the purpose of supply to other persons unnamed and presumably unknown. During intercepted telephone discussions they spoke of having made $50,000 already from selling cocaine.
There is no doubt that punishment, denunciation and general deterrence are very important factors to be taken into account when sentencing for offending involving the supply of dangerous drugs. However that does not mean that little weight should be given to the kind of circumstances which existed in the present case.
Counsel for the appellant also contended that the imposition of the fine of $3000 would not be a personal deterrent particularly given the amount of cash the respondent had at his disposal.
In support of her contentions that the sentence was manifestly inadequate, counsel for the appellant provided a table summarising previous sentences imposed in both the Local Court and Supreme Court for the possession of trafficable quantities of cocaine.
Three of those are sentences that have been imposed by the Supreme Court, in 2009 and 2017. They are distinguishable from the present matter. Two of those are the sentences imposed on Alexander Hatzivalsamis and Michelle Hatzivalsamis, referred to above. The other sentence was a sentence imposed in 2009 on Joffre McGovern for the possession of 3.4 grams of cocaine which he brought with him when he flew from Brisbane to Darwin. He was to be paid $1500 by his supplier for doing that. He was sentenced to eight months imprisonment which was immediately suspended to take into account approximately four months that he had already served in remand pending sentence.
Of the five Local Court sentences identified in the table, three were fines, the highest of which was $2000 for the possession of 3 grams of cocaine, one was a good behaviour bond and one was 80 hours community work. It is apparent that the Local Court, at least in respect of the examples provided by the appellant, has not considered imprisonment appropriate, at least in respect of cocaine. However, although those matters did concern trafficable quantities, the quantities involved in those matters were nowhere near as high as those involved in the present case.
I have not been able to find any sentences imposed by this Court in recent years for the possession or supply of trafficable quantities of cocaine. However there are numerous sentences in relation to the possession or supply of trafficable quantities of other Schedule 1 drugs, especially methamphetamine.[15] All of those sentences have involved sentences of imprisonment.
The fact that the present offending involved quantities of cocaine significantly higher than the minimum trafficable quantity, and multiple users of the drugs supplied by the respondent, makes more relevant the concerns expressed by authorities such as Roe and the need for greater focus upon denunciation and general deterrence.
Senior counsel for the respondent conceded that the sentence was lenient, but said it was lenient for a purpose. This was largely to do with the respondent’s excellent background, his voluntary contributions to the community, the fact that the use of the cocaine was confined to close friends and not commercial, his cooperation with the police, he and his family have been publicly humiliated, he has participated in voluntary drug screening and engaged in extensive counselling. I accept these points. I also accept that he has shown remorse, also reflected by his guilty plea.
Counsel also pointed out that count 2 arose as a result of the respondent’s admissions to the police. It is well accepted that
the disclosure of otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.[16]
Be that as it may, the offending the subject of count 1 was serious in itself and involved not only the possession of the 33.7 grams of cocaine but also other items consistent with an intention on his part to split up the 28 grams into smaller amounts and to place them in clip seal bags for resupply. He was also found in possession of the cash.
Counsel contended that the decision of the Court of Criminal Appeal in Roe is of no relevance in the present matter, mainly because there was no commercial element in the present case as there was in Roe. Also, Roe concerned a different drug, methamphetamine, which the Court described as “an insidious drug of dependency.”[17] The Court expressed concerns about the prevalence of that kind of offending and the serious consequences that flow from the proliferation of the drug.[18]
Whilst I accept that this Court, and I assume the Local Court, does not have before it anywhere near the number of cases concerning cocaine as it does concerning methamphetamine, and that there may be other distinguishing features between the two drugs such as the prevalence and consequences of their use, Parliament has listed both as Schedule 1 drugs and imposed the same potential penalties. It is not for this Court to distinguish one Schedule 1 drug from another just because one might be thought to be more addictive or otherwise dangerous than another.[19]
By and large the principles referred to by the Court of Criminal Appeal in Roe are relevant and applicable to matters involving the possession and supply of cocaine.
Conclusions about manifest inadequacy
I accept the submissions of the respondent’s counsel about leniency. I agree that his prospects of rehabilitation are very good and there was very little need for specific deterrence to be factored into his sentence.
However the offending itself was objectively serious and required the sentence to properly reflect denunciation and general deterrence. The imposition of a fine did not go anywhere near to satisfying that important sentencing requirement. I consider that a head sentence involving imprisonment of at least 18 months should have been imposed. The fine was a manifestly inadequate sentence.
Section 177(2)(f) and the “residual discretion”
Relevant legislation
Appeals to the Supreme Court from a sentence imposed by the Local Court are brought pursuant to s 163 of the Local Court (Criminal Procedure) Act. In relevant respects the Supreme Court has functions and powers similar to those of the Northern Territory Court of Criminal Appeal, and of appellate courts in other jurisdictions.
Section 177(2) of the Local Court (Criminal Procedure) Act states:
Upon the hearing of the appeal the Supreme Court may do any or all of the following:
(a) …
(b) mitigate or increase any penalty, forfeiture, or sum;
(c) affirm, quash, or vary the conviction, order, or adjudication appealed from …;
(d) …
(e) …
(f) notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Section 411(4) of the Criminal Code relates to appeals to the Northern Territory Court of Criminal Appeal. It states:
On an appeal against a sentence, the Court must:
(a) if it is of the opinion that another sentence, whether more or less severe, is warranted and should have been passed – quash the sentence and either:
(i)impose another sentence; or
(ii)remit the matter to the court of trial; or
(b) in any other case – dismiss the appeal.
Section 414 of the Criminal Code specifically relates to appeals to the Northern Territory Court of Criminal Appeal by a Crown Law Officer. Section 414(1) provides that:
A Crown Law Officer may appeal to the Court
…
and the Court may, in its discretion, … vary the sentence and impose such sentence or make such a declaration … as the Court thinks proper.
In my opinion the discretion contemplated in s 177(2) and 177(2)(c) of the Local Court (Criminal Procedure) Act by the words “may … vary the … order, or adjudication appealed from” is very similar to that conferred upon the Northern Territory Court of Criminal Appeal by s 414(1) of the Criminal Code and upon the Court of Criminal Appeal of New South Wales by s 5D(1) of the Criminal Appeal Act 1912 (NSW) which has been the subject of authorities concerning Crown appeals and the residual discretion, such as Green[20], R v JW[21] and CMB v Attorney General for New South Wales[22].
Many of the authorities concerning the residual discretion follow the enactment of legislation prohibiting an appellate court from taking into account any element of double jeopardy when considering whether to allow an appeal or impose another sentence. In the Northern Territory that provision is contained in s 177(4) of the Local Court (Criminal Procedure) Act in relation to appeals to the Supreme Court and s 414(1A) of the Criminal Code in relation to appeals to the Court of Criminal Appeal. Both of those provisions commence with the words:
In exercising its discretion on an appeal made under …
Section 177(2)(f) of the Local Court (Criminal Procedure) Act is virtually identical to s 411(2) of the Criminal Code.
Authorities concerning the residual discretion
Counsel referred me to the decision of the Northern Territory Court of Criminal Appeal in Wilson[23] which concerned s 414(1A) of the Criminal Code, identical to s 177(4) of the Local Court (Criminal Procedure) Act. After considering authorities in other jurisdictions, including R v JA, the Court agreed that it too “retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed or a reduced sentence should be imposed.”[24] Riley CJ added, at [27(f)]:
Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.
Provisions similar to s 414(1A) in other jurisdictions have been held to confer upon an intermediate appellate court a residual discretion to dismiss a Crown appeal even where it is satisfied that there has been error and or manifest inadequacy in the sentence. This is so despite some differences in terminology. The discretion has been held to exist where the statute states that:
(a)“the Court, if it is of opinion that another sentence … is warranted and should have been passed” – as in s 402(4) of the Criminal Code (Tas)[25] – see too s 411(4) of the Criminal Code (NT)[26];
(b)the Court “may allow an appeal if …” – s 31(4) of the Criminal Appeals Act 2004 (WA)[27];
(c)the Court “may in its discretion vary the sentence …” - s 5D(1) of the Criminal Appeal Act 1912 (NSW)[28];
(d)the Court has “an unfettered discretion” to vary the sentence – s 669A(1) of the Criminal Code (Qld)[29];
(e)the Court is satisfied that “a different sentence should be imposed” – s 289 of the Criminal Procedure Act 2009 (Vic).[30]
The underlying aim of the residual discretion in relation to Crown appeals has always been to avoid injustice to the respondent if a Crown appeal against sentence is allowed. Such an injustice would commonly arise because of “double jeopardy”. Although an appeal court is no longer permitted to take the possibility of double jeopardy into account, the courts have identified other kinds of circumstances in which the residual discretion might be exercised. These include considerations of parity and other circumstances such as “delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of resentencing on progress towards the respondent’s rehabilitation.”[31]
Ashley, Redlich and Weinberg JJA discussed the various factors that might be relevant to the exercise of the Court’s discretion to dismiss an appeal despite inadequacy of sentence having been demonstrated in Director of Public Prosecutions v Nathan Karazisis[32] at [99] – [114]. Of some relevance for present purposes are their Honours’ views expressed at [107]:
Circumstances may have changed to such a degree as to warrant leaving even a sentence that may be viewed as manifestly inadequate to stand. When an offender is given a non-custodial sentence and has complied with its terms for a significant period, there may be powerful reasons why that sentence should not be disturbed. A similar point can be made in situations where an offender, who received a short custodial sentence, has served the entirety of that sentence and been released by the time the Crown appeal is heard.
The High Court recently considered the residual discretion in CMB In relation to the discretion under s 5D(1) of the Criminal Appeal Act 1912 (NSW) French CJ and Gageler J said, at [33] – [34]:
Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as “residual” ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.
Accordingly, as Heydon JA succinctly put it in R v Hernando[33]:
if [the Court of Criminal Appeal] is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.
At [54] – [55] Kiefel, Bell and Keane JJ said:
… Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as “the residual discretion”. As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established.
The joint reasons in Green v The Queen explain the difference in appellate approach to offender and prosecution appeals by reference to the purpose that each serves: offender appeals being concerned with the correction of error in the particular case and prosecution appeals being concerned with laying down principles for the guidance of sentencing courts. …
Section 177(2)(f) and the proviso
Provisions such as s 177(2)(f) of the Local Court (Criminal Procedure) Act and s 411(2) of the Criminal Code are usually referred to as “the proviso”. They exist in similar terms in other States and also in New Zealand and Canada.[34] Most of the authorities concerning the proviso relate to appeals by the convicted person, and the circumstances and principles underlying the application of the proviso are different to those relevant to Crown appeals.
However, the proviso has been considered in relation to Crown appeals. One of those was Harvey v Bofilios[35] which concerned a Crown appeal against findings of not guilty following a ruling that there was no case to answer. After discussing s 177(2)(f) of the Local Court (Criminal Procedure) Act Grant CJ referred to the apparent overlap between the proviso and the Court’s residual discretion to dismiss a Crown appeal. At [32] he said:
Finally, the appeal court retains a residual discretion to dismiss a prosecution appeal if the interests of justice militate in favour of that result. It is not made explicit in the authorities whether that consideration forms part of the determination of whether there has been a substantial miscarriage of justice, or whether the residual discretion extends beyond and stands independently of the proviso. The factors which an appellate court may take into account in the exercise of the residual discretion suggest that its exercise extends beyond the question whether there has been a substantial miscarriage of justice, but it is unnecessary to decide that question for the present purposes.
Conclusions
As I have said, I consider that the sentence imposed upon the respondent, namely a modest fine, was manifestly inadequate. A sentence of imprisonment was required in order to reflect the seriousness of the offending and the important sentencing principles requiring denunciation and general deterrence for this kind of offending.
However, I do not consider that if the respondent was to be resentenced now it would be necessary or appropriate for him to serve actual time in prison. Rather he should be given the benefit of a suspended sentence. This is particularly so in light of his good character and the fact that other factors such as specific deterrence and protection of the community are of little if any relevance in his case. There is no suggestion that anything has happened since he was dealt with by the Local Court that would warrant him being removed from his family, work and present circumstances and sent to prison. Moreover I do not consider that a suspended sentence would require supervision or conditions. I agree with his Honour’s findings of particular circumstances of the kind contemplated by s 37(2) of the Misuse of Drugs Act.
In my opinion none of the factors referred to in the authorities such as Wilson and Green which might enliven the Court’s application of the residual discretion or which would invoke the Court’s application of the proviso in s 177(2)(f) exist in these circumstances. The prevailing requirement is that proper sentencing standards are maintained and in the case of sentencing error such as occurred here, the error corrected.
Accordingly, I will allow the appeal and resentence the respondent.
Resentence
Subject to any further evidence or submissions from counsel I would sentence the respondent to 18 months imprisonment but fully suspend that sentence forthwith.
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[1] Because the parties agreed to the matter being heard in the Local Court that Court could only impose a maximum penalty of five years imprisonment.
[2] Whitehurst v The Queen [2011] NTCCA 11 at [12]; Noakes v The Queen [2015] NTCCA 7 at [23]; Emitja v The Queen [2016] NTCCA 4 at [39]; (2016) 262 A Crim R 126.
[3] [2011] HCA 49; (2011) 244 CLR 462 (Green).
[4] Griffiths v R (1977) 137 CLR 293) at 310 per Barwick CJ; [1977] HCA 44; Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; [1994] HCA 49, discussed in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 578-584 [8]-[20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10. See also R v Borkowski (2009) 195 A Crim R 1 at 18 [70].
[5] [2013] NTCCA 3. See too The Queen v Cavanagh-Novelli [2014] NTCCA 21 at [14].
[6] [2017] NTCCA 6; (2017) 322 FLR 303 (Mossman).
[7] See too R v Riley [2006] NTCCA 10; (2006) 161 A Crim R 414 at [19], and Everett v R (1994) 181 CLR 295 at page 300, referring to Griffiths v R (1977) 137 CLR 293.
[8] (1982) 30 SASR 212.
[9] See also R v Roe [2017] NTCCA 7 at [13].
[10] Mossman at [17].
[11] [2011] NTCCA 9 (Wilson); (2011) 30 NTLR 51 at [27](f). See too R v Martyn [2011] NTCCA 13; (2011) 30 NTLR 157.
[12] Noakes v R [2015] NTCCA 7 at [15], quoting DPP v Terrick; DPP v Marks; DPP v Stewart (2009) 24 VR 457 at pages 459-460.
[13] [2017] NTCCA 7 (Roe).
[14] R v Alexander Hatzivalsamis & Anor (SCC 21708473 and 21708479, Sentencing Remarks, 8 August 2017).
[15]R v Michelle Kells (SCC 21757113, Sentencing Remarks, 17 July 2018); R v John Taylor (SCC 21717606, Sentencing Remarks, 20 April 2018); R v Kellyanne Skinner (SCC 21716700, Sentencing Remarks, 20 February 2018); R v Mathew Daly & Anor (SCC 21653895, 21653896 and 21754356, Sentencing Remarks, 19 January 2018); R v. Chantall Dart (SCC 21716698, Sentencing Remarks, 17 January 2018); R v Ryan Bloedorn (SCC 21654058, Sentencing Remarks, 11 September 2017); R v Shane Tapp (SCC 21635967, Sentencing Remarks, 4 April 2017); R v Peter Talbot (SCC 21543167, Sentencing Remarks, 7 July 2016); R v Jamie Stewart (SCC 21555577 and 21451479, Sentencing Remarks, 29 April 2016); R v Stephen Martins (SCC 21556129, Sentencing Remarks, 3 March 2016); R v Melissa Anne Byrnes (SCC,21526451, Sentencing Remarks, 12 November 2015); R v Cliff Domaschenz (SCC 21434754 and 21414056, Sentencing Remarks, 27 August 2015); R v Art Lane (SCC 21443088, Sentencing Remarks, 15 June 2015); R v Joseph Goryan (SCC 21439539, Sentencing Remarks, 30 April 2015); R v Gwenda Walsh (SCC 21316330 and 21424741, Sentencing Remarks, 11 December 2014); R v Ms Gird (SCC 21413390, Sentencing Remarks, 22 October 2014).
[16] R v Ellis (1986) 6 NSWLR 603 per Street CJ at 604.
[17] See [109].
[18] See [47] – [49] and [101].
[19] See for example the observations of Winneke P in R v Carey (1997) 97 A Crim R 552 at 557; [1998] 4 VR 13 concerning asserted differences between heroine and ecstasy.
[20] See above [7].
[21] [2010] NSWCCA 49; (2010) 77 NSWLR 7.
[22][2015] HCA 9; (2015) 256 CLR 346 (CMB).
[23] [2011] NTCCA 9; (2011) 30 NTLR 51.
[24] [27(e)].
[25] Director of Public Prosecutions v Chatters [2011] TASCCA 8 at [46] and [52]; (2011) 218 A Crim R 156.
[26] R v Wilson [2011] NTCCA 9; (2011) 30 NTLR 51.
[27] The State of Western Australia v Munda [2012] WASCA 164 at [193], [211] and [233]; (2012) 43 WAR 137; The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363.
[28] Green v The Queen (2011) 244 CLR 462 and CMB v Attorney General for New South Wales [2015] HCA 9 at [32] – [34]; (2015) 256 CLR 346.
[29] R v Lacey; ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399.
[30] Director of Public Prosecutions v Nathan Karazisis [2010] VSCA 350; (2010) 31 VR 634.
[31] Green v The Queen (2011) 244 CLR 462 at 479-480 [32] followed in Munda v Western Australia (2013) 249 CLR 600 at 625 [72].
[32][2010] VSCA 350; (2010) 31 VR 634.
[33] [2002] NSWCCA 489 at [12]; (2002) 136 A Crim R 451.
[34] Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Code (Qld) s 668E(1A); Criminal Law Consolidation Act 1935 (SA), s 353(1); Criminal Code (Tas) s 402(2); Criminal Appeals Act 2004 (WA) s 30(4).
[35] Harvey v Bofilios [2017] NTSC 68.
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