The Queen v Indrikson

Case [2014] NTCCA 10

The Queen v Indrikson [2014] NTCCA 10

PARTIES:  THE QUEEN

v

INDRIKSON, KERO

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

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 3 of 2014 (21325675)

DELIVERED:  11 June 2014

HEARING DATE:  11 June 2014

JUDGMENT OF:  RILEY CJ, SOUTHWOOD and

KELLY JJ

APPEALED FROM:  HILEY J

CATCHWORDS:

REPRESENTATION:

Counsel:

Appellant:W J Karczewski QC and D Jones

Respondent:  I Read SC

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    B

Judgment ID Number:  Sou1404

Number of pages:  11

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

The Queen v Indrikson [2014] NTCCA 10

No. CA 3 of 2014 (21325675)

BETWEEN:

THE QUEEN

Appellant

AND:

KERO INDRIKSON

Respondent

CORAM:     Riley CJ, Southwood and Kelly JJ

EX TEMPORE

REASONS FOR JUDGMENT

(Delivered 11 June 2014)

The Court:

Introduction

  1. This is a Crown appeal against sentence.

  2. On 7 March 2014 the respondent was sentenced to four years and two months imprisonment for unlawfully supplying 67 kilograms of cannabis, which is 134 times the commercial quantity of the dangerous drug, and to nine months imprisonment for possessing a traffickable quantity of methamphetamine. The second sentence of imprisonment was ordered to be served wholly concurrently with the first sentence of imprisonment giving a total sentence of four years and two months imprisonment. A non-parole period of two years and one month was fixed.

  3. The Crown appeals against the sentence of four years and two months which was imposed for count 1 on the indictment being the count of supplying a commercial quantity of cannabis. The Crown relies on the sole ground of appeal that the sentence was manifestly inadequate. It submits that the sentence imposed for count 1 was so disproportionate to the seriousness of the crime, as to shock the public conscience. The sentence departs from accepted sentencing standards.

    The facts

  4. The facts of the offending are as follows.

  5. The respondent is 46 years of age. Michelle Larfield, the co-offender, is 48 years of age. At the time of the offending, which is the subject of this appeal, they were in a de facto relationship and they resided on a property at Arbus Road in Humpty Doo.

  6. On 18 April 2013 the Northern Territory Police started investigating the activities of the respondent and the co-offender. The investigation involved the use of a surveillance device installed at the offenders’ residence, the interception of the respondent’s mobile telephone service and other surveillance of the offenders.

  7. As a result of their electronic monitoring of the offenders, police discovered that on 15 April 2013 the offenders drove to Birdsville with $200,000.00 in cash and they met with an associate from Adelaide. The respondent purchased 100 pounds of cannabis from his associate. The cannabis was placed in the false bottom of a fuel drum which was filled with liquid. The offenders then returned to Darwin. The respondent engaged others to…

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The Queen v Indrikson [2014] NTCCA 10
Case
[2014] NTCCA 10
Decision Date

CaseChat Overview and Summary

The Crown appealed to the Supreme Court of the Northern Territory against the sentence imposed on the respondent, Indrikson, for supplying a commercial quantity of cannabis. The Crown argued that the sentence of four years and two months was manifestly inadequate and so disproportionate to the seriousness of the offence as to shock the public conscience and depart from accepted sentencing standards. The respondent, aged 46, and his de facto partner engaged in the importation and sale of significant quantities of cannabis.

The legal issues before the Court were whether the sentence imposed for the supply of a commercial quantity of cannabis was demonstrably inadequate, and if so, whether the Court should exercise its residual discretion to dismiss the Crown's appeal despite the established inadequacy of the sentence. The Court was required to consider the objective seriousness of the offence, the respondent's culpability, and the relevant sentencing objectives, including general deterrence and protection of the community.

The Court found that the sentence imposed was indeed so disproportionate to the seriousness of the crime that it shocked the public conscience and was significantly out of step with prevailing sentencing standards. The Court reasoned that the quantity of cannabis imported and sold, the respondent's knowledge of the amounts involved, and the substantial profit made underscored the objective seriousness of the offence. Despite the respondent's lack of relevant prior convictions, the Court held that his prior good character and prospects of rehabilitation carried little weight given his high placement in a commercial drug enterprise. The principal sentencing objectives were therefore identified as general deterrence, protection of the community, punishment, and denunciation. The Court also considered whether the Crown's submissions in the original sentencing hearing had been sufficiently forceful, and whether any residual discretion should be exercised to dismiss the appeal, referencing principles of fairness, delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.

The Court concluded that the sentence was manifestly inadequate and ordered that the appeal be allowed, a different sentence to be imposed.

Orders

Orders of the court

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Background

Background to the litigation

The Crown appeals against the sentence of four years and two months which was imposed for count 1 on the indictment being the count of supplying a commercial quantity of cannabis. The Crown relies on the sole ground of appeal that the sentence was manifestly inadequate. It submits that the sentence imposed for count 1 was so disproportionate to the seriousness of the crime, as to shock the public conscience. The sentence departs from accepted sentencing standards.The facts The facts of the offending are as follows. The respondent is 46 years of age. Michelle Larfield, the co-offender, is 48 years of age. At the time of the offending, which is the subject of this appeal, they were in a de facto relationship and they resided on a property at Arbus Road in Humpty Doo. On 18 April 2013 the Northern Territory Police started investigating the activities of the respondent and the co-offender. The investigation involved the use of a surveillance device installed at the offenders’ residence, the interception of the respondent’s mobile telephone service and other surveillance of the offenders. As a result of their electronic monitoring of the offenders, police discovered that on 15 April 2013 the offenders drove to Birdsville with $200,000.00 in cash and they met with an associate from Adelaide. The respondent purchased 100 pounds of cannabis from his associate. The cannabis was placed in the false bottom of a fuel drum which was filled with liquid. The offenders then returned to Darwin. The respondent engaged others to travel on the Stuart Highway in advance of their motor vehicle and advise the offenders of any police presence on the highway. After he returned to Darwin the respondent sold the cannabis in pound lots for $4,600.00 per pound and in smaller amounts for significantly more than $4,600.00 per pound. The respondent made a profit of 130 percent from the sale of the cannabis. Before 27 May 2013 the respondent made arrangements with his associate in Adelaide for the purchase of more cannabis. The discussions between the respondent and his associate included statements to the effect that the associate had only half the usual quantity of cannabis ready to supply. On 27 May 2013 the offenders travelled to Fowler’s Bay in South Australia where they met the respondent’s associate. They then drove to Kadina and the respondent purchased 22.4 kilograms of cannabis. On 13 June 2013 the offenders drove towards Darwin on their return journey. At 12.45 pm on 15 June 2013 police stopped the offenders five kilometres south of Katherine and searched their motor vehicle. They found 22.4 kilograms of cannabis in the false bottom of a 44 gallon drum that was in the back of the offenders’ motor vehicle. Police also found 1.97 grams of methamphetamine and other small quantities of cannabis in the possession of the offenders. The offenders were arrested and taken to Darwin. Later on 15 June 2013 the police searched the offenders’ residence and found a further 336.5 grams of cannabis, 1.99 grams of methamphetamine, a set of digital scales and two cryovac machines. The total amount of dangerous drugs located in the motor vehicle and in the home of the offenders was 22.74 kilograms of cannabis and 3.96 grams of methamphetamine. The methamphetamine in the possession of the offenders was for personal use only.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The quantity of cannabis is an important factor to be taken into account in this case when assessing the objective seriousness of the offence because on each occasion the respondent imported cannabis into the Northern Territory he knew how much cannabis he was importing; and he made a significant amount of money from the sale of the 100 pounds of cannabis he imported and sold.Consideration In our opinion, the sentence imposed on the respondent for the offence of supplying 67 kilograms of cannabis was so disproportionate to the seriousness of the respondent’s crime that it does shock the public conscience. The sentence imposed was significantly out of step with other sentences and was manifestly inadequate. The importation and sale of such large amounts of cannabis causes significant harm in the community. Transhipments of cannabis are prevalent. The respondent had demonstrated a capacity to recover from setbacks in his life, he had the capacity to obtain $200,000 for the purchase of the dangerous drug and as a mature and intelligent adult he deliberately chose to stop leading a law abiding life and engage in criminal conduct for commercial gain at a very high level of offending. He was aware of the harm that his misuse of dangerous drugs had caused him but he persisted in the misuse of dangerous drugs. While the respondent had no relevant prior convictions, he was not a first offender and his prior good character and prospects of rehabilitation do not carry much weight in the circumstances of this case. As the respondent was highly placed in an enterprise he established for the importation, distribution and sale of drugs, the principal sentencing objectives are general deterrence and protection of the community, punishment and denunciation. The cases referred to by the Director of Public Prosecutions in the annexure to his submissions give a sound indication of the prevailing sentencing standards and the sentence passed by the sentencing judge is significantly out of step with those standards. As part of the respondent’s submissions, Mr Read argued that although the counsel for the Crown in the court below prepared written submissions and conscientiously sought to assist the court, it might be that a more senior prosecutor could properly have put the sentencing submissions more forcefully in the circumstances of this case. It might be that in real terms, the Crown position was not properly put, specifically with regard to the objective seriousness of the case. In this regard, Mr Read asked the Court to exercise the discretion referred to by the Court of Criminal Appeal in R v Martyn[1] at subparagraphs [13](e) and (f)[2], namely:(e) Apart from double jeopardy considerations, the Court 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.(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.