TB v The Queen

Case [2018] NTCCA 8

CITATION:TB v The Queen [2018] NTCCA 8

PARTIES:  TB

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:CA16 of 2017 (21651207 & 21708901)

DELIVERED:  21 May 2018

HEARING DATE:  5 March 2018

JUDGMENT OF:  Grant CJ, Southwood J and Mildren AJ

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT

Appellant convicted of drug offences committed while a youth – order suspending sentence of detention under Youth Justice Act subject to requirements under that legislation – no power to restore sentence held in suspense – no failure to accord procedural fairness in relation to prospects of rehabilitation – sentence imposed for single count of supplying less than a commercial quantity of methamphetamine manifestly excessive – total head sentence manifestly excessive – no failure on part of the sentencing judge to consider principle of totality – appeal allowed and appellant resentenced.

Misuse of Drugs Act (NT) s 5A, s 23, s 37
Sentencing Act (NT) s 43
Youth Justice Act (NT) s 82, s 83, s 121

Carroll v The Queen (2011) 29 NTLR 106, Gilligan v The Queen [2007] NTCCA 8, R v Stubberfield [2010] SASC 9, R v Lobban (2001) 80 SASR 550, The Queen v Day (2004) 14 NTLR 218, The Queen v Gurruwiwi [2008] NTCCA 2, The Queen v Le Cerf (1975) 13 SASR 237, The Queen v Roe [2017] NTCCA 7, Wong v The Queen (2001) 207 CLR 584, referred to.

REPRESENTATION:

Counsel:

Appellant:S Cox QC

Respondent:  M Nathan SC

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  28

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

TB v The Queen [2018] NTCCA 8

No. CA16 of 2017 (21651207 & 21708901)

BETWEEN:

TB

Appellant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, SOUTHWOOD J and MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 21 May 2018)

THE COURT:

  1. On 7 July 2016, following pleas of guilty in the Supreme Court to a number of property offences committed in October 2015, the appellant, who was aged 16 at the time of the offending, was sentenced to an aggregate period of detention for two years, backdated to 30 March 2016. Without proceeding to a conviction, the sentence was suspended forthwith on conditions, including ongoing supervision for the whole period of two years. An operational period of two years was fixed as the period during which the appellant must not commit another offence punishable by imprisonment. At the time of sentence, her Honour warned the appellant that if she committed another such offence during the two year period, she would almost certainly have to serve the two years of the sentence held in suspense. In imposing sentence, her Honour made it clear that she was exercising her powers pursuant to the Youth…

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AGLC
TB v The Queen [2018] NTCCA 8
Case
[2018] NTCCA 8
Decision Date

CaseChat Overview and Summary

The appeal concerned a young offender, TB, who was convicted of various drug offences committed between June and October 2016, when TB was aged 16 and 17. The sentencing judge imposed a head sentence of detention, which was suspended under the *Youth Justice Act*. The appeal was heard by Grant CJ, Southwood J, and Mildren AJ.

The legal issues before the court included whether the sentencing judge had erred in imposing a sentence that was manifestly excessive, particularly in relation to the totality of the offending. The court also considered whether there was any power to restore a sentence held in suspense under the relevant legislation and whether the appellant had been denied procedural fairness regarding her prospects of rehabilitation.

The Court of Appeal found that the sentence imposed for the single count of supplying less than a commercial quantity of methamphetamine was manifestly excessive, and consequently, the total head sentence was also excessive. The court determined that there was no power under the *Youth Justice Act* to restore a sentence that had been suspended. Furthermore, the court found no failure on the part of the sentencing judge to consider the principle of totality, nor any failure to accord procedural fairness in relation to the appellant's prospects of rehabilitation.

The appeal was allowed, and the appellant was resentenced.

Orders

Orders of the court

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Background

Background to the litigation

At the time of the offending the appellant was aged 16 and 17. By the time of sentence the appellant was aged 18, having reached that age on 2 August 2017. Her Honour backdated the sentence to 1 February 2017. The effect of this, which her Honour clearly realized, was that the appellant would serve the remaining six months of her sentence in a Youth Detention Centre, rather than in an adult prison. Her Honour fixed an operational period of three years and six months after her release, imposed conditions including supervision for the whole period of her suspended sentence, and ordered the forfeiture of $2050 found in her possession at the time of her arrest on 6 October 2016, being the proceeds of the sale of drugs by the appellant.The factsMatter number 216517207 The appellant pleaded guilty to the following counts:1.Unlawfully supplied methamphetamine to another person between 25 June and 17 July 2016. Maximum penalty 14 years.2.Unlawfully supplied cannabis plant material to another person between 7 July and 17 July 2016. Maximum penalty 5 years.3.Intentionally supplied less than a commercial quantity of methamphetamine to another person between 18 July 2016 and 4 October 2016. Maximum penalty 14 years.4.Intentionally supplied less than a commercial quantity of cannabis to another person between 18 July and 4 October 2016. Maximum penalty 5 years.5.Intentionally supplied less than a commercial quantity of MDA to another person on or about 3 October 2016. Maximum penalty 14 years.6. Possessed less than a trafficable quantity of methamphetamine in a public place on 3 October 2016. Maximum penalty 5 years. Briefly, the agreed facts were that the appellant, with some friends, visited a unit complex in Coconut Grove on the afternoon of 6 October 2016. There was a vehicle parked outside which police believed contained a stash of money and drugs left behind by a person who had been arrested the previous evening. A number of people were also present who had received the same information. All present were cautioned and the appellant was searched. During the search the police found two clip seal bags containing 10 pills, later identified as 2.83 grams of MDA; two clip seal bags containing a white crystalline substance, later identified to be 0.19 grams of methamphetamine; $2,050 in cash; a piece of paper with hand written ledger entries; and an iPhone. The appellant was arrested and subsequently interviewed during which she made partial admissions. She was released from custody and told that she would be summonsed at a later date. Subsequently, when her phone was interrogated, it was revealed that she had been engaged in the supply to others of quantities of cannabis from 7 July to 3 October 2016 and quantities of methamphetamines from 25 June 2016 and 3 October 2016. The down-loaded phone content showed that she had sourced her methamphetamine from an adult individual, well known to the police, and then co-ordinated or actively engaged in the on-supply of those drugs in varying amounts for various prices to 18 different people known by police to be involved in the drug trade, as well as to other unknown individuals. The best estimates of the amounts of drugs supplied were well above the trafficable quantity thresholds. The counts were to be taken as representative counts of the appellant’s propensity for committing acts preparatory to supply and actual supply of drugs to persons known and unknown in the Darwin area in the relevant time period, pursuant to s 23(6) of the Misuse of Drugs Act (NT). Matter number 21648451

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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