Russell v The Queen
[2022] NTCCA 6
•16 March 2022
CITATION:Russell v The Queen [2022] NTCCA 6
PARTIES: RUSSELL, Francis
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 23 of 2020 (21936799)
DELIVERED ON: 16 March 2022
HEARING DATE: 21 February 2022
JUDGMENT OF: Grant CJ, Blokland and Brownhill JJ
CATCHWORDS:
SENTENCING – Mitigating factors – Consequences under Migration Act 1958 (Cth)
SENTENCING – Subjective considerations on sentence – Deportation
Applicant found guilty of drug offences – Applicant given notice of cancellation of visa – Applicant subject to deportation on release from prison – Matter not considered in sentencing proceedings – Subsequent decision altered prevailing understanding of the relevance of deportation in sentencing proceedings – Evidence established applicant would suffer hardship as result of deportation – Matters properly taken into account in mitigation of sentence – Appeal allowed and applicant resentenced.
Misuse of Drugs Act 1990 (NT), s 34
Adams v The Queen (2008) 234 CLR 143, Barbi v The Queen [2019] NTCCA 19, Edmonds v The Queen [2019] NTCCA 1, Fillipou v The Queen (2015) 89 ALJR 776, Lambert v R [2015] NSWCCA 22, Quah v The Queen [2021] VSCA 164, R v Abbott(1984) 17 A Crim R 355, R v McKenna (unreported, NSWCCA, 16 October 1992), The Queen v Calica [2021] NTSCFC 2, The Queen v Cumberland [2019] NTCCA 14, The Queen v Meginess [2019] NTCCA 5, referred to.
REPRESENTATION:
Counsel:
Applicant:M Thomas
Respondent: N Papas QC, Acting Director of Public Prosecutions, with D Castor
Solicitors:
Applicant:Territory Criminal Lawyers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 17
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINRussell v The Queen [2022] NTCCA 6
No. CA 23 of 2020 (21936799)
BETWEEN:
FRANCIS RUSSELL
Applicant
AND:
THE QUEEN
Respondent
CORAM: GRANT CJ, BLOKLAND & BROWNHILL JJ
REASONS FOR DECISION
(Delivered 16 March 2022)
THE COURT:
At the hearing of this appeal on 21 February 2022 the Court made the following orders with the concurrence of the parties:
1. The application for an extension of time is allowed.
2. The application for leave to appeal is allowed.
3. The appeal is allowed on Ground 5.
4. The sentence imposed on 1 May 2020 is set aside.
5. The offender is sentenced to an aggregate period of imprisonment for five years backdated to 3 October 2019.
6. That sentence to imprisonment is suspended after the offender has served two years and six months.
7. An operational period of two years and six months from the date of the offender’s release is fixed for the purposes of ss 40(6) and 43 of the Sentencing Act 1995 (NT).
8. The order for forfeiture remains undisturbed.
9. The offender is convicted of the offence charged by complaint taken on 4 October 2019 and discharged without further penalty subject to the requirement to pay the relevant crimes victims assistance levy.
10. Reasons for Decision will be published at a later date.
These are those Reasons.
Background and procedural history
On 9 April 2020, the applicant pleaded guilty to possessing a trafficable quantity of cocaine, supplying a commercial quantity of cocaine and possessing an anabolic steroid.
The agreed facts may be summarised as follows. On 17 September 2019, police executed a search warrant on the applicant’s residence and seized five clip seal bags containing a total of 3.58 grams of cocaine. The offender was arrested, charged with possessing a trafficable quantity of cocaine and granted bail on that same day. From the time of his release on bail until 3 October 2019, police conducted covert surveillance of the applicant and his residence. That surveillance disclosed the applicant’s continuing involvement in the supply of dangerous drugs. On 3 October 2019, police executed a further search warrant on the applicant’s residence and vehicle, and seized digital scales, clip seal bags, $27,900 in cash, multiple mobile telephones and a canister of tablets containing steroids. The applicant subsequently admitted to supplying in excess of a commercial quantity of cocaine between 18 September and 3 October 2019; and that the cash in the amount of $27,900 came from sales of cocaine to people in the Darwin community in quarter ounce (seven gram) lots for $3000 per lot. The applicant was arrested and charged with supplying a commercial quantity of cocaine.
On 1 May 2020, the Supreme Court sentenced the applicant to imprisonment for five years and six months, backdated to 3 October 2019, for possessing a trafficable quantity of cocaine on 17 September 2019 and supplying a commercial quantity of cocaine between 18 September and 3 October 2019. The offence of supplying a commercial quantity of cocaine was subject to a minimum non-parole period of not less than 70 percent of the period of imprisonment, and the Court fixed a non-parole period of three years and 11 months.
On 22 December 2020, the applicant filed an application for an extension of time within which to make application for leave to appeal and an application for leave to appeal. After the application for an extension of time was refused by a single judge, he applied to have his application(s) determined by the Court of Criminal Appeal.[1]
The appeal was originally listed to be heard on 11 June 2021. However, on 26 May 2021 the Full Court of the Supreme Court delivered its reasons in The Queen v Calica.[2] By that decision, the Full Court relevantly held:
(a)Subject to the facts being established by evidence, the prospect of hardship suffered as a result of deportation, and loss of the opportunity to settle permanently in Australia may, in appropriate circumstances, be taken into account in mitigation of sentence.
(b)The sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender. The likelihood of the applicant being deported from Australia must be assessable on the evidence put before the court, rather than merely speculative. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months would enliven the power of the Minister to deport the offender, then deportation is properly viewed as a completely speculative possibility which should not be taken into account. The onus is on the defendant to establish on the balance of probabilities the likelihood of deportation, and to establish that deportation in his or her case would in fact be a hardship likely to make imprisonment more onerous, and such as to amount to extra-curial punishment.
The applicant is a New Zealand national who faced deportation on the basis that he had been sentenced to a term of imprisonment of more than 12 months. At the time he was sentenced in December 2020, the prevailing authority from the Court of Criminal Appeal was to the effect that the possibility of deportation was an entirely irrelevant matter for sentencing purposes.[3] Accordingly, no consideration was given to that possibility during the sentencing proceedings. Following the delivery of the decision in Calica, which altered the previous understanding of the relevance of deportation in sentencing proceedings, counsel for the applicant applied for an adjournment of the appeal hearing on the basis that the decision bore directly on the applicant’s circumstances, and that the applicant wished to procure evidence and ventilate the issue on appeal. An adjournment was granted on that basis. On 17 September 2021, the applicant made an application for leave to appeal on two further grounds, one of which was that the punitive effect of deportation had not been taken into account in the sentencing proceedings.
On 31 October 2021, the applicant made an affidavit deposing to the following matters:
(a)at the time the applicant was sentenced he was in Australia on a Class TY Subclass 444 Special Category (Temporary) visa;
(b)on 19 June 2020 (which was approximately seven weeks after he was sentenced), the applicant received a Notice of Visa Cancellation under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had failed the ‘character test’ as a result of the matters for which he was sentenced;
(c)the applicant would not be pursuing any proceedings to seek the revocation of the decision to cancel the visa, and accepted that he would be deported from Australia on release from prison;
(d)the applicant had been resident in Australia since moving here with his family at age 14;
(e)the applicant married in 2014 and had two children in that relationship, the marriage had broken down before his arrest, and his deportation would likely give rise to significant difficulty in maintaining contact with his children with consequent emotional distress;
(f)following the breakdown of his marriage the applicant had entered into another relationship and had a child, and his partner in that continuing relationship has expressed uncertainty as to whether she could move to New Zealand and leave her life in Australia behind;
(g)upon his deportation to New Zealand, the applicant intends to live with his father in a small town south-east of the Bay of Plenty in which he will be unlikely to find work in his usual occupation as a steel fixer; and
(h)upon his deportation to New Zealand, is highly likely that the applicant’s earnings will be significantly less than his usual earnings while living in Australia.
The respondent does not contest any of those depositions.
Proposed grounds of appeal
At the time the application came on for hearing on 21 February 2022, the applicant’s proposed grounds of appeal were as follows:
1. That the learned sentencing judge erred in relying unduly on the indicative guidelines for the supply of methamphetamines in The Queen v Roe (2017) 40 NTLR 187 and in doing so, failed to take into account adequately or at all the particular objective and subjective features of the offending.
2. That the learned sentencing judge, in using The Queen v Roe, did not allow for the distinction that the Roe categories were formulated in the context of the prevalence of methamphetamine and its particularly dangerous and insidious [qualities] justifying a greater weight on general deterrence and denunciation.
3. That in all the circumstances of the offending and the offender the sentence and non-parole period were manifestly excessive.
4. That the sentencing exercise miscarried due to the sentencing judge finding facts which were not supported by the evidence, namely that:
(a)the supply was to persons unknown;
(b)the offender stood to gain a considerable profit;
(c)the offender was involved in commercial supply (which the sentencing judge defined as being supply to persons other than family and friends).
5. That the prospects of the applicant’s deportation from Australia to New Zealand ought to be taken into account on his sentence.
6. That on the face of the warrant of commitment the sentence of five years and six months was imposed for the offence of possessing a trafficable quantity of a Schedule 1 dangerous drug, which offence carries a maximum penalty of imprisonment for seven years, and was manifestly excessive.
After some preliminary discussion of the deportation ground, the parties agreed that the application for leave and the appeal were properly allowed on that ground, and the applicant was resentenced.
The prospect of deportation and resentencing
As described above, the decision of the Full Court in The Queen v Calica determined that the prospect of hardship suffered as a result of deportation and loss of the opportunity to settle permanently in Australia may be taken into account in mitigation of sentence. Given that the decision had not been delivered at the time of sentence, and given the state of the law prior to its delivery, there was in this case no defect in submissions made to the sentencing judge by defence counsel and no error on the part of the sentencing judge. However, even in the absence of error a miscarriage may occur where material relevant to the sentence is not produced at the hearing[4], or where the sentencing judge has failed to give consideration to relevant sentencing principles[5].
Evidence in relation to the applicant’s deportation, and his response to the advice that he was going to be deported, was not available at the time of the sentencing proceedings and could not have been discovered with reasonable diligence at that time. Moreover, as already stated, even if the evidence had been available it would not have been considered material to the disposition at the time of sentence. In those circumstances, the respondent properly conceded that the Court was able to receive the information about deportation as new evidence, and to determine whether the interests of justice required a reduction in the sentence.[6]
There is no need in this case for the Court to speculate about a visa cancellation and deportation decision that is still to be made by the Commonwealth Minister. That decision has been made, and, as stated, will not be challenged by the applicant. The prospect that the applicant will be deported from Australia is both assessable and practically certain. The defendant has also led unchallenged evidence to establish that deportation in his case would have punitive consequences which amount to extra-curial punishment. They include loss of the opportunity to settle permanently in Australia; removal from the country in which he has resided since he was 14 years of age; an almost certain reduction in his earning capacity and employment prospects; and a consequential interference with and impairment of his relationship with his two daughters from his first marriage, and possibly with the child of the relationship he was in at the time of the offending.
So far as the applicant’s other personal circumstances are concerned, he was 29 years of age at the time of the offending and 30 years of age at the time of sentence, he had no prior convictions of any kind, he had a good work history as a steel fixer, he had been active in rugby league, and friends and employers attested to his positive personal qualities.
The other matter properly taken into account in resentencing the applicant is that the Crown sought and was granted forfeiture of the applicant’s vehicle which was related to the offending. The vehicle was purchased by the applicant for $35,000 and was valued at $25,000 at the time of forfeiture. Section 34(3) of the Misuse of Drugs Act 1990 (NT) provides relevantly that where a person is found guilty of an offence against the Act the court may order that any vehicle that relates to the offence be forfeited to the Crown. A number of observations may be made about the operation of that provision and the punitive effect of the forfeiture in these circumstances.
First, forfeiture of the vehicle was not the automatic statutory consequence of the finding of guilt. It may be compared to and contrasted with the automatic forfeiture of any drug or precursor which is effected by s 34(1) of the Misuse of Drugs Act. Second, forfeiture under s 34(3) of the Misuse of Drugs Act is discretionary rather than mandatory. Moreover, sentence and forfeiture are clearly to be decided by the same judicial officer. Third, there would not appear to be any provision in terms similar to s 5(4) of the Sentencing Act 1995 (NT), which limits the circumstances in which any allowance may be made in the sentencing process for the forfeiture of property pursuant to the Criminal Property Forfeiture Act 2002 (NT).
Having regard to those features of the forfeiture regime, the total punitive effect of both the sentence to be imposed and the forfeiture is to be calculated in order to achieve the overall purposes of the sentencing process. In other words, the relative value of the property subject to forfeiture and the personal circumstances of the offender concerning that forfeiture may have some mitigating effect. Otherwise, the order is apt to produce hardship or disproportionality in the sentence. For these reasons, the resentencing of the applicant also properly took into account the punitive effect of the forfeiture.
It was having regard to these matters that the applicant was resentenced to an aggregate period of imprisonment for five years which is to be suspended after the offender has served two years and six months. It was unnecessary to impose any conditions on that order suspending sentence given that the applicant will be deported to New Zealand immediately upon his release from prison.
The other grounds of appeal
Both parties filed written outlines of submissions in advance of the appeal. Although the other proposed grounds of appeal were not addressed during the course of oral submissions, it is necessary to record that this Court was not minded either to grant leave or to allow the appeal on any of those other grounds. That is to dispel any potential misapprehension in the future about the basis for allowing the appeal, particularly in relation to the grounds asserting manifest excess.
The assertion that the learned sentencing judge relied unduly on the indicative guidelines for the supply of methamphetamines in The Queen v Roe fails to recognise the following matters. First, the relevant portion of the sentencing remarks does not establish that the sentencing judge applied The Queen v Roe as if it were a guideline judgment. Second, reference was made during the course of submissions to the limitations on the use of The Queen v Roe, which were plainly references to the qualifications posited in the subsequent decision of the Court of Criminal Appeal in Edmonds v The Queen.[7] It may be assumed that the sentencing judge was well aware of those limitations. Third, no inference of a departure from the process of intuitive synthesis arises from the fact that the sentencing judge adopted a starting point of imprisonment for seven years in coincidence with the statement in The Queen v Roe that the starting point in the second category of case ‘is ordinarily a sentence of seven to 10 years’ imprisonment’. Finally, the remarks on sentence show a careful consideration of the facts and circumstances of this offending, and of where this particular offending and offender lay on the scale of objective seriousness.
The second proposed ground of appeal was, in essence, that the sentencing judge should have drawn a distinction between cocaine and methamphetamine on the basis of the latter drug’s ‘particularly dangerous and insidious [qualities] justifying a greater weight on general deterrence and denunciation’. The proposition that sentencing judges should apply a harm-based gradation of penalties to drugs which have been classified by the legislature as Schedule 1 substances is contrary to the decision of the High Court in Adams v The Queen.[8]
The third proposed ground of appeal was that in all the circumstances of the offending and the offender the sentence and non-parole period were manifestly excessive. There is nothing in the sentence itself, and nothing arising from the survey of the comparative sentences undertaken by both counsel and the sentencing judge during the course of the sentencing proceedings, which would lead necessarily to the conclusion that the sentence imposed in this case was clearly and obviously, and not just arguably, excessive.
The fourth proposed ground of appeal was that the sentencing exercise miscarried due to the sentencing judge finding facts which were not supported by the evidence, namely that: (a) the supply was to persons unknown; (b) the offender stood to gain a considerable profit; and (c) the offender was involved in commercial supply (which the sentencing judge defined as being supply to persons other than family and friends). That is a reference to the sentencing judge’s consideration of two sentencing decisions which defence counsel had relied on for comparative purposes. The sentencing judge distinguished those sentencing decisions on the basis that, in the first, the accused had only supplied to family and friends on what was effectively a cost recovery basis, and, in the second, the accused had only supplied to his workmates on the same basis. The sentencing judge distinguished those matters on the ground that the applicant was ‘conducting a commercial operation and stood to gain a considerable profit’.
As the High Court said in Filippou v The Queen:
… [A] sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich [R v Olbrich (1999) 199 CLR 270 at [24]; 73 ALJR 1550 (emphasis in original)]:
[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous. [9]
In the application of those principles, the onus was on the applicant to establish on the balance of probabilities that he was only supplying to family and friends on other than a commercial basis if he wished findings in those terms to be made in his favour. The applicant made no attempt to do so. That was in circumstances in which the applicant had pleaded guilty to the supply of a commercial quantity of cocaine, and had admitted in the agreed facts that the almost $30,000 in cash which was found in his possession when police executed a search warrant on his residence was derived from supplying cocaine to a number of people in quarter ounce lots for $3000 per lot. Having regard to those matters, there is an air of unreality about the applicant’s complaint that the sentencing judge somehow fell into error in proceeding on the basis that the applicant was conducting a commercial operation and stood to gain a considerable profit.
The final proposed ground of appeal was that on the face of the warrant of commitment the sentence of five years and six months was imposed for the offence of possessing a trafficable quantity of a Schedule 1 dangerous drug, which offence carries a maximum penalty of imprisonment for seven years, and was manifestly excessive. That assertion is based on a highly artificial reading of following table contained in the warrant:
CASE NO.
OFFENCE NO.
OFFENCE DESCRIPTION
SENTENCE
21936799 (16)
1
Poss schd 1 traf qty
5 Year(s) 6 Month(s) commencing on 3 October 2019
21936799 (16)
2
Sply schd comm qty
Although the sentencing judge did not expressly stipulate that an aggregate penalty was imposed in respect of both counts on the indictment, that is the only inference which may reasonably and rationally be drawn in the circumstances. When an aggregate penalty is imposed, the one aggregate sentence is recorded across all offences charged on the indictment in the fourth column of the table contained in the warrant of commitment. The form of the warrant of commitment in this case does not in any way sustain the conclusion, or even a sensible argument, that the sentencing judge imposed a sentence of imprisonment of five years and six months after discount for possessing a trafficable quantity of cocaine, and imposed no penalty for the far more serious offence of supplying a commercial quantity of cocaine charged on the same indictment.
_________________________
[1] Criminal Code 1983 (NT), s 429 (2); Supreme Court Rules 1997 (NT), r 86.22(6).
[2] The Queen v Calica [2021] NTSCFC 2.
[3] The Queen v MAH [2005] NTCCA 17.
[4]R v Abbott(1984) 17 A Crim R 355; R v McKenna (unreported, NSWCCA, 16 October 1992).
[5]Lambert v R [2015] NSWCCA 22. That case involved the breach and revocation of a good behaviour bond, and a particular provision of the Crimes (Sentencing Procedure) Act 1999 (NSW) providing for the options available in the event of revocation.
[6]See the similar determination in Quah v The Queen [2021] VSCA 164 at [69]; citing R v Nguyen [2006] VSCA 184.
[7] Edmonds v The Queen [2019] NTCCA 1 at [25]-[26].
[8] Adams v The Queen (2008) 234 CLR 143 at [10]-[11]; as subsequently adopted by the Northern Territory Court of Criminal Appeal in The Queen v Meginess [2019] NTCCA 5 at [19]; Barbi v The Queen [2019] NTCCA 19 at [31]; The Queen v Cumberland [2019] NTCCA 14 at [12].
[9]Fillipou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 at [64].
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