Schuelein v The Queen
[2016] NTCCA 7
•23 December 2016
Schuelein v The Queen [2016] NTCCA 7
PARTIES: SCHUELEIN, Joseph
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 8 of 2016 (21531453)
DELIVERED: 23 December 2016
HEARING DATE: 21 October 2016
JUDGMENT OF: SOUTHWOOD, BLOKLAND and HILEY JJ
APPEALED FROM: KELLY J
CATCHWORDS:
CRIMINAL LAW – Appeal against sentence – whether the sentencing Judge failed to give sufficient weight to the applicant’s rehabilitation – whether the sentence imposed was manifestly excessive in all the circumstances – sentence within range and not plainly unjust – period of actual imprisonment ordered unlikely to undo rehabilitation – ground of appeal dismissed by Southwood and Hiley JJ, Blokland J dissenting – appeal dismissed
CRIMINAL LAW – Appeal against sentence – whether the sentencing Judge made an unavailable conclusion of fact – principles in De Simoni v The Queen do not arise – ground of appeal dismissed unanimously – appeal dismissed
CRIMINAL LAW – Appeal against sentence – error in statutory maximum penalty – error found not to amount to a miscarriage of justice – ground of appeal dismissed unanimously – appeal dismissed
Crimes Act 1914 (Cth)
Misuse of Drugs Act (NT) s 5, s 6, s 37
Sentencing Act (NT) s 5
McDonald v The Queen (1992) 110 FLR 232, applied
R v RAAD (2006) 15 VR 338, followed
Daniels v The Queen (2007) 20 NTLR 147; Fisher v The Queen [2014] NTCCA 19; Liddy v R [2005] NTCCA 4; R v De Simoni (1981) 147 CLR 383; R v Pogson; R v Lapham; and R v Martin 2012) 82 NSWLR 60; R v Syrch and Burns (2006) 18 NTLR 160; The Queen v Cavanagh – Novelli [2014] NTCCA 21; The Queen v Indrikson [2014] NTCCA 10; Truong v The Queen [2015] NTCCA 5; Yardley v Betts (1979) 22 SASR 108, referred to
REPRESENTATION:
Counsel:
Applicant:I Read SC
Respondent: D Dalrymple
Solicitors:
Applicant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 33
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSchuelein v The Queen [2016] NTCCA 7
No. CA 8 of 2016 (21531453)
BETWEEN:
JOSEPH SCHUELEIN
Applicant
AND:
THE QUEEN
Respondent
CORAM: SOUTHWOOD, BLOKLAND and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 23 December 2016)
SOUTHWOOD and HILEY JJ:
On 23 May 2016 the applicant pleaded guilty to two counts on an indictment dated 18 May 2016. Count 1 pleaded that contrary to s 5(1) and (2)(b)(iii) of the Misuse of Drugs Act (NT) on 25 June 2015 at Katherine the applicant supplied 4,848.79 grams of cannabis which is a commercial quantity of the dangerous drug. Count 2 pleaded that contrary to s 6(1) of the Misuse of Drugs Act on 25 June 2015 at Katherine the applicant received $40,000 obtained indirectly from the commission of an offence contrary to s 5 of the Misuse of Drugs Act knowing or believing the money to have been so obtained.
On 25 May 2016 the applicant was sentenced to an aggregate sentence of three years and 10 months’ imprisonment. The sentence was backdated to 25 December 2015 and the term of imprisonment is suspended after the applicant has served 18 months in prison on conditions which involve the applicant being supervised for 18 months. The sentencing Judge fixed an operational period of three years.
The applicant seeks leave to appeal on the grounds that the sentencing Judge erred in:
1.failing to give sufficient weight to the applicant’s demonstrated rehabilitation (proposed ground 2);
2.finding “you most certainly realised that you getting money from Mr Sands was putting him in fear and was causing severe financial damage to members of his family” (proposed ground 3);
3.so far as her Honour proceeded on the basis that the first count on the indictment had a statutory maximum of 25 years when in fact it was 14 years (proposed ground 6); and
4.imposing a sentence that was in all the circumstances of the offending and the applicant manifestly excessive (proposed ground 5).
Leave to appeal
In determining whether leave to appeal should be granted a single judge of this Court applies the test enunciated by Asche CJ in McDonald v The Queen.[1] The test is whether there is an arguable case that the sentencing Judge’s sentencing discretion miscarried or whether there is any real element of injustice which might operate against the applicant if leave were refused. As Asche CJ stated, the purpose of the application for leave to appeal against sentence is to weed out the obvious cases where it is plain that the appeal cannot succeed, but not otherwise to deprive the applicant of his right to appeal. “Even if the individual judge considering the application feels that on the probabilities the applicant will not succeed, if there is a real possibility that the applicant might suffer injustice by refusal, leave should be granted.”[2]
The test is one of reasonableness. In R v RAAD[3] the test was expressed as follows.
A single judge should grant leave if there is a reasonably arguable ground, even if he or she considers that it would probably not be made out when it was fully argued or that the court of three would think that, even though it was made out, no different sentence should be passed.
Before pursuing an application for leave to appeal against sentence to three judges of the Court of Appeal, it is important that counsel for the applicant give weight to the fact that a single judge of this Court has formed the view that it is plain the appeal cannot succeed. It is also important for counsel to note that an appeal is from the sentence at first instance and not from the sentencing remarks. Not every error in a sentencing Judge’s sentencing remarks is such as to give rise to a right to have the sentence set aside and a fresh sentence imposed. The error must be vitiating or show that there has been a miscarriage of justice.
Before further pursuing an application for leave to appeal, counsel should consider if the reasonably arguable ground of appeal is one which could result in a lesser sentence on appeal. Among other things, this involves an objective and realistic assessment of the objective seriousness of the applicant’s offending.
In this case the applicant abandoned two proposed grounds of appeal which were clearly not arguable and persisted in arguing two proposed grounds of appeal which were also not arguable. Counsel are encouraged to exercise proper discernment in formulating grounds of appeal and not raise footling arguments. Poor grounds of appeal detract from good grounds of appeal.
The facts
The facts of the offending are as follows.
The applicant and Robin Sands were acquaintances. Mr Sands owed the applicant $40,000 for drug sales that occurred before June 2015.
Sometime before 19 June 2015 the applicant flew to Sydney where he obtained 4,848.79 grams of cannabis which is almost 10 times the commercial quantity of the dangerous drug. The cannabis was packed in cryovac bags and hidden in a large black duffle bag.
After obtaining the cannabis the applicant hired a campervan and drove from Sydney to the Northern Territory. He arrived at Mataranka on 25 June 2015 where he met Mr Sands and demanded payment of the $40,000 that Mr Sands owed him. The applicant then drove Mr Sands from Mataranka to Katherine. Before reaching Katherine, Mr Sands telephoned his mother and told her that he was in serious trouble and needed $30,000 to be transferred to his Westpac Bank account if he was to remain safe.
After reaching Katherine Mr Sands made further contact with his mother and she transferred $30,000 to his bank account. The applicant drove him to Westpac Bank on Katherine Terrace and he withdrew the $30,000. Mr Sands then returned to the campervan and gave the applicant the money.
The applicant drove Mr Sands to a local park and told him the $30,000 was not enough. He said Mr Sands needed to pay him another $10,000. Mr Sands then telephoned his sister and asked her to deposit $10,000 into his bank account. She did so and the applicant again drove Mr Sands to the Westpac Bank in Katherine. Mr Sands withdrew the $10,000 and gave it to the applicant who dropped him off at the BP Service Station and Travel Centre in Katherine.
The police became aware of Mr Sands’ situation. They obtained a statement from him and arrested the applicant at the Beagle Motel. The police searched the applicant’s room at the motel and found the money and the cannabis in his room.
Objective seriousness
The offending is objectively serious. The maximum penalty for count 1 is imprisonment for 14 years. The maximum penalty for count 2 is imprisonment for 25 years. Such offences are prevalent and the supply and use of cannabis causes great harm in the community. Cannabis is even more harmful when supplied in remote communities. The offending occurred in the context of the applicant engaging in drug dealing for commercial gain. He had sold a significant and very lucrative amount of the dangerous drug to Mr Sands and he was engaging in further drug supply at the time he recovered the money from him. $40,000 is a significant amount of money and the applicant deliberately travelled interstate and imported almost 10 times the commercial quantity of cannabis into the Northern Territory. The obtaining and supply of the cannabis was a planned activity and the applicant made arrangements in advance to recover the money from Mr Sands. As a result of the pressure he placed on Mr Sands to repay the money both his mother and sister were at risk of losing a significant amount of money. Fortunately, most of the money was recovered by the police.
While the applicant told the probation and parole officer who prepared his supervision assessment that his motivation for committing these crimes was not obtaining money per se but obtaining money to pay for his cannabis use, it is apparent that the operation in which he was engaged was an organised operation that was conducted for commercial gain. This was conceded by counsel for the applicant who appeared before the sentencing Judge. The applicant’s drug dependency was not causally related to his offending.
Subjective factors
At the time he was sentenced the applicant was a 30 year old man. He was born in Newcastle in New South Wales. He had never before been in prison.
The applicant completed year 10 of High School and then undertook TAFE courses. He had worked in the construction industry and in hospitality. At the time he was sentenced he was employed by Top End Tree Services as part of their ground crew assisting other workers to remove and prune trees and palms in Darwin. He was earning $1200 per week. He was also undertaking a certificate II Coxswain’s course at Charles Darwin University. His ultimate plan is to obtain a Masters’ Certificate and join the Merchant Navy.
The applicant had been using cannabis since he was 14 years of age. Before he turned 14 he was diagnosed as suffering from Attention Deficit Hyperactivity Disorder. He had been prescribed Ritalin but he did not like taking his prescription medication and he started using cannabis. Initially he used the drug on a recreational basis but eventually he became dependent on the dangerous drug and was using it every day.
The applicant has a criminal history in New South Wales but no criminal history in the Northern Territory. In New South Wales he had been convicted of driving unlicensed with mid-range blood alcohol content, two counts of actual bodily assault and two minor counts of possessing cannabis.
After his arrest the offender was remanded in custody. While on remand for five months he secured a job in the prison kitchen. After a period of time he was granted bail to undertake the Banyan House Residential Drug Rehabilitation Program. While at Banyan House he was required to wear an anklet electronic monitoring device. He started the program on 26 November 2015 and completed it on 18 March 2016. A report from Banyan House records that the applicant stated he was adamant he would not use drugs. He displayed good insight and made comments of great maturity and value that were of benefit to the applicant’s peers who were struggling with their recovery. While at Banyan House he was permitted to attend university to undertake his Coxswain’s course.
After he left Banyan House he separated from his girlfriend because she would not stop consuming cannabis. He has reconnected with his father and other members of his family.
Sentencing remarks
During her sentencing remarks, her Honour the sentencing Judge, took into account the following matters - the applicant’s personal circumstances including, his cannabis use, his employment history, his current employment, his attendance at Banyan House, his substantial efforts to get off the drug, his time on remand, his pleas of guilty, his separation from his de facto because of her continued use of drugs, his cessation of cannabis use, and his pleas of guilty.
When sentencing the applicant her Honour the sentencing Judge made the following remarks.
I do not accept that you did not realise the damage that [cannabis] was doing to you and other people. Perhaps you did not realise the damage that your habit was doing to you but you most certainly realised that you getting money from Mr Sands was putting him in fear and was causing severe financial damage to members of his family. So I simply do not accept that you did not realise that you were causing damage.
I am going to take into account that this was not a one-off transaction. The size of the ‘debt’, and I put that word in inverted commas, owed to you by Mr Sands indicates a substantial ongoing commercial drug dealing operation. As you have chosen not to co-operate with Police, by revealing the details of the operation, and you are perfectly entitled to do that, I intend sentencing you on the basis that you were the principal because I have no other information to go on.
Your conduct in encouraging Mr Sands to obtain money from his family in the fashion that he did saying that he needed to ensure his safety, reflects badly on you.
There are a number of things that I need to think about in terms of crafting a sentence that is suitable. These are serious offences. They carry a maximum of 25 years imprisonment each.
The courts have said many times that general deterrence is the most important thing to consider in these sorts of drug offences. I must impose a sentence that will discourage other people from doing what you have done. I also have to impose a sentence that will discourage you from doing something like this again.
I also, however, need to consider rehabilitation. I accept for the purposes of this sentencing exercise that you were a drug dependent individual. However, the Crown does not accept that your drug dependency was causally related to your offending and neither do I. This was clearly an ongoing commercial drug dealing business generating large amounts of money.
You have pleaded guilty and you are entitled to a reduction in your sentence for your willingness to facilitate the course of justice. However, you were caught red-handed and I do not accept that you are remorseful for your part in distributing this drug in the Northern Territory. Prices are higher up here than can be obtained down south and you took advantage of that. One of the reasons for the higher return up here is that the sub-dealers charge extortionate prices for the drug in Aboriginal communities.
There is no evidence, of course, that you intended to supply directly into Aboriginal communities and you are not charged with that more serious offence. However, you brought over 4 kilograms, nearly 5 kilograms, of cannabis into the Northern Territory and there is a fair chance some of it may have ended up in those communities where it causes tremendous harm. Not just the effect of the drug on young people in particular but the violence and other social harm that it causes when they cannot get the drug and the desperate financial harm done when scarce money, most of it provided through the social welfare system, is used to buy expensive drugs at grossly inflated prices. It amounts to taking the bread out of the mouths of children.
In these circumstances I intend to reduce your sentence by 15 percent. If it had not been for your guilty plea I would have considered an appropriate head sentence to have been an aggregate sentence of four years and six months. Allowing a reduction of around 15 percent (14.8) you will be convicted and sentenced to an aggregate term of three years and 10 months’ imprisonment.
Now under s 37(2) of the Misuse of Drugs Act, I have to sentence you to a minimum of 28 days actual imprisonment unless I think that it would be unjust to do so. Having regard to the circumstances of the offending, or as you as the offender, I do not think it is unjust and, in any case, I believe you have served more than 28 days on remand in any event.
And I think the seriousness of your offending warrants a period of actual imprisonment which is substantially longer than that. I do take into account that you have a job. I do take into account that you have made substantial efforts to get off the drug yourself but, as I say, I do not consider that was causally related to your offending in any event. I direct that your sentence be suspended after you have served 18 months on the following conditions.
In the circumstances of a person with a prior history of minor drug offending committing more serious drug related offences in the context of an ongoing substantial commercial drug operation, her Honour the sentencing Judge determined to give significant weight to deterrence and punishment. At the same time, the sentence her Honour imposed was not crushing and contains conditions which further facilitate the applicant’s rehabilitation.
Ground 2 – Failing to give sufficient weight to rehabilitation
The applicant submitted that given the steps he had taken to rehabilitate himself there was not as great a need for the sentencing Judge to give weight to personal deterrence when passing sentence. It was said that this was particularly so in view of the fact the applicant had been specifically deterred from further offending by his five months on remand. By placing the applicant back in prison for a further 13 months the learned sentencing Judge failed to give sufficient weight to the applicant’s demonstrated rehabilitation and unnecessarily interfered with that process.
This proposed ground of appeal is unsustainable.
The applicant was engaged in a course of drug dealing when he committed these serious offences. He is a mature adult who freely and deliberately chose to engage in serious criminal conduct for commercial gain. He has two prior convictions for minor drug offences. In the circumstances, it was appropriate for the sentencing Judge to give substantial weight to deterrence and punishment. A sentencing disposition which fixed a non-parole period was within the range of sentencing dispositions available in this case. By suspending more than half the head sentence of imprisonment the sentencing Judge gave due weight to the steps that the applicant had taken towards rehabilitation. The sentence was not crushing and the conditions imposed on the suspended sentence are conditions that will continue to support the applicant’s rehabilitation. The applicant will be able to obtain employment and continue with his education when he is released from prison.
This is not a case where the offender was unemployed and committed the drug offences because of his drug addiction and then completed rehabilitation programs in order to overcome a causative factor in his offending thereby reducing the likelihood of re-offending. The applicant was equally capable of committing such drug offences after he completed the Banyan House program and the educational courses he undertook. The applicant used the opportunity provided by his bail for his advancement and to improve his own wellbeing. As there was no causal connection between the applicant’s drug dependency and his offending there was no reason to give more mitigatory weight to the applicant undertaking the Banyan House rehabilitation program and undertaking education programs than was given by the sentencing Judge. The fact that the applicant is now drug free is likely to have little impact on whether he re-offends.
Further, no sufficient nexus has been established for substantial mitigatory weight to be given to the applicant’s current employment. It is not clear on the evidence before the Court that the applicant was unemployed in the lead up to his offending. The evidence was that he had previously worked in the construction industry and in the hospitality industry. It was not suggested that lack of employment by either creating boredom or other relevant mental states or creating need was a factor in the offending. The same applies in relation to the education courses the applicant undertook to enhance his career prospects.
Of much greater mitigatory significance in cases such as this is evidence that the offender fully cooperated with and assisted the police, engaged in activities that are of benefit to drug dependent people and engaged in other activities that are directed at reducing drug dealing.
While it is true that as a result of his advancement while on bail the applicant may find prison harder, the period of actual imprisonment ordered by the sentencing Judge is unlikely to undo any advancement and rehabilitation that the applicant has achieved.
Ground 3 – unavailable conclusion of fact
When sentencing the applicant her Honour the sentencing Judge made the following remarks.
I do not accept that you did not realise the damage that [cannabis] was doing to you and other people. Perhaps you did not realise the damage that your habit was doing to you but you most certainly realised that you getting money from Mr Sands was putting him in fear and was causing severe financial damage to members of his family. So I simply do not accept that you did not realise that you were causing damage.
Her Honour then went on to state:
Your conduct in encouraging Mr Sands to obtain money from his family in the fashion that he did saying that he needed to ensure his safety, reflects badly on you.
The applicant submitted that these findings went beyond what was open on the facts and elevated the objective seriousness of the offending in a way that potentially infringed the principle in R v De Simoni.[4] In our opinion, this ground of appeal cannot be sustained because there was no finding of fact of the kind contended by the applicant and no finding of fact that quantitatively affected the length of the sentence.
In the sentencing remarks set out at [34] her Honour rejects the applicant’s contention that he did not realise he was causing harm by committing these crimes. That is, her Honour does no more than reject a matter put in mitigation on behalf of the applicant. She does not make a finding amounting to an aggravating circumstance.
In the passage referred to at [35] her Honour the sentencing Judge is not referring back to the passage set out at [34]. She is referring to the following admitted facts.
He arrived at Mataranka on 25 June 2015 where he met Mr Sands and demanded payment of the $40,000 that Mr Sands owed him. The applicant then drove Mr Sands from Mataranka to Katherine. Before reaching Katherine, Mr Sands telephoned his mother and told her that he was in serious trouble and needed $30,000 to be transferred to his Westpac bank account if he was to remain safe.
The remarks set out at [35] are little more than a throwaway line about the nature of the applicant’s character as demonstrated by him ‘standing by’ while Mr Sands obtained money from his mother and sister in the way that he did. His conduct reflects how callous and commercially driven his offending was.
In the circumstances, the De Simoni principles do not arise for consideration by this Court.
Ground 6 – Statutory maximum penalty
When sentencing the applicant the sentencing Judge was under the mistaken apprehension that the maximum penalty for count 1 was 25 years when it was 14 years. This error was drawn to her Honour’s attention immediately after her Honour passed sentence by counsel who appeared on behalf of the applicant in the Court below.
There was the following exchange.
Counsel:Your Honour, just one observation. During the course of your remarks, the maximum penalty in respect of count 1 is 14 years not 25 years as a starting point.
Her Honour: My apologies.
Counsel:So it is a starting point of significantly less than life imprisonment.
Her Honour: 25, it was not life.
Counsel:25 years, yes, it was not life but s 5(2)(b)(iii), is 14 years not 25 years.
Her Honour: Thank you Mr Maley. It does not actually make a difference to my assessment of the thing but I have …
Counsel:That is on Schedule 1, I think your Honour.
Her Honour: Schedule 1 and this is a Schedule 2 drug. My apologies for that remark, it is 14 years and it does not in fact make a difference to my sentencing disposition because the maximum penalty for count 2 is 25 years. And that was, I was taking into account notional substantial concurrence. Although if I had been sentencing separately, I would have ordered partial but not total concurrence because the $40,000 did not relate to the nearly 5 kilograms and I was to take into account the maximum 25 years which is correct for count 2.
Her Honour: Yes, but thank you for drawing that to my attention Mr Maley. I appreciate it.
It is apparent that, after the error about the maximum penalty was drawn to her Honour’s attention, she considered the matter and determined the sentence she imposed was still the appropriate sentence. Her Honour in effect states that in arriving at the aggregate sentence she imposed, she considered that the applicant had committed two offences and while, in such a sentencing exercise, there was substantial concurrence there was not total concurrence because count 2 did not relate to the importation of the ‘5’ kilograms of cannabis. In other words, having regard to the totality of the applicant’s offending and the maximum sentences which were specifically brought to her attention her Honour determined the sentence she imposed reflected the objective seriousness of the whole of the applicant’s offending.
Her Honour’s initial error is of no consequence and did not result in an unjust or disproportionate sentence. Nor did the error amount to a miscarriage of justice.
Ground 5 – Manifestly excessive
For a sentence to be manifestly excessive it must on the facts be unreasonable or plainly unjust. Having considered all of the relevant circumstances, we are of the opinion that the sentence imposed on the applicant was not plainly unjust. The offences were serious offences committed for commercial gain in the context of ongoing dealing in dangerous drugs. It was appropriate for the sentencing Judge to give substantial weight to the sentencing objects of deterrence and punishment. The sentencing Judge took into account all relevant subjective factors and the sentence her Honour imposed was not of such an order as to undo any of the steps that the applicant has taken towards living a lawful life.
This Court has stated on a number of occasions that people who engage in dealing in dangerous drugs for commercial gain will be severely punished. The severe penalties reflect the harm that results from such crimes. The Court must do what it can to protect the community from such harm.[5]
The Court was taken to a number of sentencing decisions so that the Court could consider if the sentence imposed on the applicant was so far out of the range of sentences for such offences as to be manifestly excessive. It was apparent that those authorities were insufficient to establish an applicable range for an aggregate sentence for two offences such as these, one being the supply of cannabis of this magnitude and the other the receipt of tainted moneys. The authorities were too disparate to be useful comparators. For example, a number of the sentencing decisions involved cases where the offender had provided considerable assistance to the authorities.
Conclusion
Leave is refused in relation to proposed grounds of appeal 3 and 6 and the application for leave to appeal about those grounds of appeal is dismissed. They were not reasonably arguable.
Leave is granted to the applicant to appeal in relation to proposed grounds of appeal 2 and 5 but the appeal on those grounds is dismissed.
BLOKLAND J
I would grant leave to appeal on ground 2 and ground 5, uphold the appeal on those grounds and re-sentence the applicant.
Background
The applicant pleaded guilty to one count of supply a commercial quantity of cannabis, namely 4,848.79 grams contrary to s 5(1)(2)(b)(iii) of the Misuse of Drugs Act and to one count of receiving $40,000 cash obtained indirectly from the commission of an offence against s 5 of the Misuse of Drugs Act.
The date of the offending was 25 June 2015.
Following his pleas of guilty, the applicant was convicted of both counts and on 25 May 2016 was sentenced to an aggregate term of imprisonment of three years and 10 months, to be suspended after serving 18 months on conditions recommended by Correctional Services. An operational period of three years was set.
Facts of the offending
The sentencing facts were that at some time prior to June 2015, an acquaintance of the applicant, Robin Sands (Sands), owed the applicant a debt of $40,000 for drug sales. At some time prior to 19 June 2015, the applicant flew from Darwin to Sydney where he obtained at least 4,848.79 grams of cannabis that was packaged into cryovac bags and hidden in a black duffle bag. The applicant hired a campervan and drove from Sydney to Mataranka on 25 June 2015 where he met with Sands. The applicant demanded payment of $40,000 owed by Sands. He drove Sands from Mataranka to Katherine but before reaching Katherine, Sands phoned his mother and told her that he was in serious trouble and needed $30,000 to be transferred into his Westpac bank account if he was to remain safe. After reaching Katherine, Sands made further contact with his mother and the applicant drove him to the Katherine Branch of the Westpac Bank. Sands withdrew $30,000 that his mother had transferred to him. The applicant then drove Sands to a nearby park and told him that he needed the further $10,000 to be paid. Sands then phoned his sister and asked her to deposit $10,000 into his account which she did. The applicant again drove Sands to the Westpac bank and withdrew $10,000. Sands gave a total of $40,000 to the applicant.
Police became aware of Sand’s situation and located him in Katherine. He provided police with a statement. Police then attended the Beagle Motor Inn in Katherine, arrested the applicant in his room and seized $38,700 cash in a cloth bag with a further $949.20 in cash and the 4848.79 grams of cannabis, the subject of count 1.
Post arrest conduct, response to the charges and personal circumstances of the applicant
The applicant declined to participate in a record of interview with police. The applicant remained in custody, initially for five months. Most of the first week on remand was in the Katherine Watch House. The applicant’s counsel told the Court below that for various reasons outlined, the applicant found that a “harrowing experience”. While on remand for five months he worked in the prison kitchen six days per week, prior to being bailed. On 25 November 2015 the applicant was assessed as a drug dependant person and suitable for entry into Banyan House drug rehabilitation programme. He was bailed to Banyan House and commenced and completed the three months drug rehabilitation programme. At the time of sentence the Court received two letters from Banyan House showing the applicant had completed the residential drug rehabilitation programme and stayed a further month voluntarily at Banyan House. During that time he commenced studies and completed the Coxswain 1 Course. When on bail at Banyan House, he was required as a condition of bail to wear an ankle bracelet tracking device. At the time of the sentence hearing, the applicant was continuing to study to gain qualifications as a Cox Swain. He was also working as a tree feller earning $1200 per week.
It was accepted by counsel for the prosecution at first instance that the case was always going to proceed as a plea. None of the facts throwing light on the applicant’s subjective circumstances were disputed. What was clear was that the prosecution did not accept the applicant’s drug addiction was causally connected to the offending. The applicant was 29 years old at the time of the offending. He had disassociated from his peers who were drug users, including separating from his partner due to her refusal to cease cannabis use. His family were supportive, especially his father who had travelled from interstate to support him during the sentencing hearing. The submission was made on his behalf that as a result of his greater insight into the harms caused by his offending, he had committed to be drug free. He had not given information to police about his sources, however his counsel told the court he had instructed that he was prepared to provide a statement whereby he could give a first name and a rough description.
The applicant did not have a significant criminal history. In 2007 in New South Wales, on the same day, he was dealt with for two offences of assault occasioning actual bodily harm and received a fine for one count and community service for the other. In 2011 he was fined $250 for two counts of possessing a prohibited drug. The penalties imposed tend to indicate neither sets of offending were in a serious category.
Assessment of the gravity of the offending
It is acknowledged that this was serious offending. The learned sentencing Judge correctly proceeded on that basis. Offending of this kind in the Northern Territory has the capacity to cause great suffering to large sections of the community, especially to vulnerable groups. It is not only the detrimental health consequences on a significant scale, but the economic and social costs to communities who cannot afford the diversion of funds into unproductive and harmful activities such as the purchase of cannabis. The reasons for strong sentencing responses to commercial cannabis offending in the Northern Territory are explained further and confirmed in Daniels v The Queen.[6] That approach is adhered to in the many cases, regrettably, that the Court deals with. The prevalence of offending of this kind is evident in the schedule of sentencing cases provided on appeal. This is especially so in cases such as this one where a clear profit motive is established. General deterrence is the primary sentencing principle. The applicant accepted that he had engaged in the commercial activity of supplying cannabis for some time and that was the reason the drug debt of $40,000 was owed.
The amount of cannabis forming the basis of the supply of a commercial quantity of cannabis of almost 5 kg was significant, however it was not in the range of many of the larger amounts of cannabis referred to the Court during the appeal. It is appreciated that reliance on a schedule of cases, although something of an indication of sentencing trends, may be skewed in drug cases as it is quite often unknown what the level of adjustment has been for offenders who have given useful information to police. The obtain tainted property count tended to elevate the gravity of the overall offending given it clearly showed this was not a “once off” episode.
In a case such as this where the offender has made significant efforts prior to being sentenced to facilitate rehabilitation, such efforts are usually, within the appropriate limits having regard to the overall gravity, taken into account or recognised in the sentence in a meaningful way. Upon being sentenced, the applicant was required to return to prison for a significant period after engaging substantially in meaningful rehabilitation.
Sentencing considerations of the learned sentencing Judge
The learned sentencing Judge set out the charges and the agreed facts. Those have already been summarised and will not be repeated here. When setting out the charges, the learned sentencing Judge stated the maximum penalty for count 1 was 25 years, when it is 14 years. This was corrected after the sentence was pronounced and after counsel for the applicant drew her Honour’s attention to the mistake. As will be seen below, in my view, this was unlikely to have had a specific bearing on the sentence actually passed.
The sentencing Judge noted the subjective factors that have been outlined, including the applicant’s efforts at rehabilitation and education. Her Honour did not accept the submission that the applicant did not realise he was causing damage, specifically pointing out that the applicant realised he was getting money from Sands, putting him in fear and causing severe financial damage to members of his family. This observation primarily related to the facts relevant to count 2.
Her Honour also correctly in my view made it clear that the applicant would be dealt with as a principal. She noted that the conduct comprised in count 2 reflected badly on the applicant and set out the reasons for the need for general deterrence and the significant social harms in Aboriginal communities that occur as a result of cannabis supply, however acknowledged that the applicant was not charged with an aggravated form of offending involving an allegation of supply intended for Aboriginal communities. The prominence of general deterrence was also acknowledged:
The courts have said many times that general deterrence is the most important thing to consider in these sorts of drug offences. I must impose a sentence that will discourage other people from doing what you have done. I also have to impose a sentence that will discourage you from doing something like this again.
In relation to rehabilitation, her Honour said:
I also however need to consider rehabilitation. I accept for the purposes of this sentencing exercise that you were a drug dependent individual. However, the Crown does not accept that your drug dependency was causally related to your offending and neither do I. This was clearly an ongoing commercial drug dealing business generating large amounts of money.
Later in the sentencing remarks her Honour stated:
And I think the seriousness of your offending warrants a period of actual imprisonment which is substantially longer than that. I do take into account that you have a job. I do take into account that you have made substantial efforts to get off the drug yourself but, as I say, I do not consider that was causally related to your offending in any event.
Her Honour then sentenced the applicant to the aggregate term of three years and 10 months imprisonment to be suspended after the applicant served 18 months in prison. The sentence of imprisonment was backdated to 25 December 2015 in acknowledgement of the time the applicant had previously spent in custody. He was returned to custody. He was to be supervised for 18 months after release.
I will deal with the grounds in the order they were argued in this Court.
Ground 1:
Failing to give sufficient weight to the applicant’s pleas of guilty
This ground was abandoned at the hearing of the application.
Ground 3:
The learned sentencing Judge erred in finding “you most certainly realised that your getting money from Mr Sands was putting him in fear and was causing severe financial damage to members of his family”.
It was argued that the applicant’s impugned conduct with respect to the tainted property charge was confined as between the applicant and Sands. Further, the applicant was not party to putting Sands’ family members in apprehension or causing them damage. Although the comment in this part of her Honour’s sentencing remarks relates to the family members of Sands, in my opinion this was an unexceptional comment given the agreed sentencing facts. The comment was open and did not elevate the assessment of the gravity of the offending beyond what could be reasonably taken from the facts. The facts were that the applicant “demanded” money from Sands. Sands felt the pressure of that demand to contact members of his family. While count 2 was confined to receiving tainted property, the demand for the tainted cash is a fact of the offending and it was reasonable on the agreed facts for her Honour to assess those facts in the way they were expressed. Her Honour’s impression of the facts did mean that she had inappropriately elevated or aggravated the gravity of the offending in an impermissible way such to consider the case more akin to demand money with menaces. This did not amount to a breach of the principle discussed in R v De Simoni.[7] This was part of the surrounding circumstances of the commission of the receiving tainted property offence. The applicant was present during, or at least aware of the efforts Sands was making with members of his family to obtain the money. It was a fair observation in terms of consideration of the circumstances surrounding count 2. I would not uphold this ground.
Grounds 2 and 5:
The learned sentencing Judge erred in failing to give sufficient weight to the applicant’s demonstrated rehabilitation; the sentence is in all the circumstances of the offending and the applicant, manifestly excessive.
These two grounds are closely associated and were argued together. In my view these grounds are made out. For the reasons already set out, the objective seriousness of the offending is well acknowledged as is the priority given to general deterrence as the governing sentencing principle.
The applicant had however, by any measure made significant progress in respect of rehabilitation. It is the case that although there was a lengthy history of drug addiction that was not disputed, the applicant's commercial drug supply was not causally connected to his addiction. It was not submitted to be a case where the commercial activity funded the addiction. Her Honour found the applicant was a drug dependant person. In my respectful view, rehabilitation is not only relevant to directly causative factors with respect to sentencing. It is broader in scope. Its relevance is beyond causal connection. This was explained in R v Pogson; R v Lapham; and R v Martin in the context of the Crimes Act 1914 (Cth):[8]
“Although not defined by statute, the term “rehabilitation” has a well-recognised content in the context of sentencing. Rehabilitation as an object of sentencing has not been confined to those who are regarded as being ill or predisposed to crime by environmental factors, including alcohol or drug abuse. A statement frequently cited with respect to the concept of rehabilitation is that of King CJ in Vartzokas v Zanker (1989) 51 SASR 277 at 279 where he said:
“The passage which I have quoted from the remarks of the learned sentencing magistrate discloses, in my opinion, an error of principle. It implies that rehabilitation or reform, as an object of sentencing, is confined to those who are in need of rehabilitation by reason of factors such as illness or being ‘predisposed to such behaviour by his environment or his experiences of life’, that is to say, to persons subject to some personal or social disadvantage. That involves a misconception of the meaning of rehabilitation and its place in the sentencing process.
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person”.[9]
Although of course no risk with respect to re-offending can be completely diminished, the steps the applicant took towards his own rehabilitation, albeit not causally connected to the offending can reasonably be seen to reduce the risk of re-offending in the future and therefore serve specific deterrence. The Sentencing Act (NT) sets out the purposes for which sentences may be imposed which include inter alia s 5(1)(b) to provide conditions in the courts order that will help the offender to be rehabilitated; and s 5(1)(c) to discourage the offender or other persons from committing the same or similar offence.
The material tendered by consent during the sentencing hearing included a letter from the chief executive officer of Banyan House of 20 May 2016:
Mr Schuelein presented as a dedicated person eager and committed to address the life challenges he was facing. During his tenure as patient at our clinics he exhibited increased commitment and insight into the challenges and previous indiscretions he had fallen victim to.
During his tenure as patient Mr Schuelein volunteered in his free time to develop a large vegetable garden towards making the Forster Foundation self-sufficient in growing its own vegetables – thus bringing about significant savings.
Early in his recovery Mr Schuelein proactively identified future development opportunities towards obtaining a qualification towards securing gainful employment – opportunities he rasped and followed through with constructive drive and strong will to complete and success. This in part led him completing his recovery before the due date empowering him to pursue employment opportunities. He has applied the skills taught during his recovery to the fullest – ensuring a stable and gainful employment and the capacity to obtain stable accommodation.
The above is a testament to Mr Schuelein’s character and capacity to face adverse life events, recover and be resilient.
It was clear from the further material provided by Banyan House that the applicant’s insight and attitude improved over time. The Exit Report of 18 March 2016, indicated the applicant initially struggled and was resistant to the program; that he had been challenged by staff in group therapy regarding a statement that drugs would not be a problem for him, however he was adamant he would not use again and would fully engage in his life after the program. It was also noted that whilst in the program he “supported and displayed good insight and would make comments of great maturity and value that were a benefit to certain peers who were struggling with their recovery”. The Exit Report goes on to explain the applicant’s significant commitment and application in starting the construction and development of a large vegetable garden on his own in his free time at Banyan House. The overall impression is that the applicant worked very hard on insight and improvement in his attitude that although not causally connected with the offending, in my respectful opinion must serve well the sentencing principles of specific deterrence and rehabilitation. Offenders who take a proactive approach to their rehabilitation can expect that those efforts will be recognised in the sentence.[10] It is of course always a question of weight. In my respectful view the approach taken to rehabilitation was unnecessarily narrow. The applicant was recognised as drug dependent and although the conditions imposed upon his release were intended to support rehabilitation, given he was assessed as suitable for supervision, it was a somewhat harsh result that he was returned to custody for a significant period before accessing that support.
On appeal counsel for the Crown described the overall sentence as a “severe sentence” in written submissions, and in oral submissions submitted “a tough sentence, there is no doubt about it, but it wasn’t so severe, we submit as to be outside the appropriate range”. Counsel for the Crown submitted strongly that despite that characterisation, the sentence was not out of range. I respectfully disagree. The question of manifest excess must be considered taking into account all of the relevant factors. Notwithstanding the seriousness of the offending, once the significant efforts at rehabilitation are appreciated, in my view this should be reflected not only in conditions after release but to a significant degree in the amount of time to be served in custody. This is particularly given the implicit harshness of the return to prison after the period on bail during which the applicant complied with strict conditions and engaged in rehabilitation and generally pro-social activities that were likely to reduce the risk of reoffending.
The harshness of returning a person to custody, even for a short period is well recognised, even in the face of an inadequate sentence. In The Queen v Cavanagh – Novelli[11] in re-sentencing the respondent after a successful appeal against an inadequate sentence, given the efforts of the respondent in that case between the passing of the inadequate sentence and the successful appeal, the Court took into account the two months he had served for the offence of cause serious harm, as well as the fact he immediately commenced an electrical apprenticeship upon release, that he had honoured his obligations under the suspended sentence and continued in positive domestic arrangements. His prospects for rehabilitation were regarded as very good and the Court declined to interrupt his progress towards rehabilitation. It was said to be counter-productive to re-imprison the respondent and to place all that had been achieved at risk. I do appreciate there is a different context when re-sentencing after an appeal against inadequacy, however the way the Court dealt with rehabilitation illustrates that it is not confined to only matters causally related to the offending. In the discussion on rehabilitation, the Court of Criminal Appeal relied on the well-established principles in Yardley v Betts:[12]
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
Once the full facts including the appellant’s current prospects are appreciated, in my view the sentence is properly characterised as manifestly excessive. I come to that conclusion giving all due respect to the principles governing the exercise of discretion, particularly sentencing appeals.[13] I am persuaded however that due to confining the concept of rehabilitation, the discretion miscarried. I would uphold these grounds.
Ground 6:
The learned sentencing Judge erred in so far as she proceeded on the basis that the first count on the indictment had a statutory maximum of 25 years when in fact it is 14 years.
This ground represents a mistake made by her Honour, however I do not agree it was this factor that led to the length and structure of the particular sentence imposed. I would not uphold this ground.
Conclusion
I would grant leave to appeal on grounds 2 and 5, allow the appeal on those grounds and re-sentence the appellant. I would re-sentence the appellant, given the reality of the time between sentence and the hearing and determination of the appeal, to an aggregate three years imprisonment commencing 25 December 2015, suspended after 12 months on the same conditions set by the learned sentencing Judge. I would order supervision for one year after release and set an operational period of two years after release.
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[1] (1992) 110 FLR 232 at 235.
[2] McDonald v The Queen (1992) 110 FLR 232 at 235.
[3] (2006) 15 VR 338.
[4] (1981) 147 CLR 383.
[5] Truong v The Queen [2015] NTCCA 5 at [34] – [36]; The Queen v Indrikson [2014] NTCCA 10 at [25].
[6] (2007) 20 NTLR 147.
[7] (1981) 147 CLR 383 discussed in R v Syrch and Burns (2006) 18 NTLR 160.
[8] (2012) 82 NSWLR 60 at [115].
[9] See also at [116] - [117] where their Honour’s set out an extensive number of leading sentencing materials and texts which further this point.
[10] Fisher v The Queen [2014] NTCCA 19 at [20]; The Queen v Cavanagh – Novelli [2014] NTCCA 21 at [20] - [22].
[11] [2014] NTCCA 21.
[12] (1979) 22 SASR 108 at [112] per CJ.
[13] Liddy v R [2005] NTCCA 4 at [12].