The Queen v Roe

Case •

[2017] NTCCA 7

•

25 July 2017

CITATION: The Queen v Roe [2017] NTCCA 7

PARTIES:  THE QUEEN

v

ROE, Chad

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

JURISDICTION:  CRIMINAL APPEAL from SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:CA 11 of 2016 (21556213)

DELIVERED ON:  25 July 2017

DELIVERED AT:  Darwin

HEARING DATE:  6 April 2017

JUDGMENT OF:  Grant CJ, Southwood and Blokland JJ

APPEAL FROM:  Barr J

CATCHWORDS:

CRIMINAL LAW – DRUG OFFENCES – JUDGMENT AND PUNISHMENT

Crown appeal against sentence on the ground of manifest inadequacy – supply of a commercial quantity of methamphetamine over an extended period – cross-border importation – primary sentencing purposes are punishment, denunciation, community protection and deterrence – inordinate weight given to rehabilitative purposes – appeal allowed and offender re-sentenced.

Criminal Code (NT) s 414(1A)
Misuse of Drugs Act (NT) s 5, s 23(6)

DPP (Cth) v Gregory (2011) 34 VR 1, DPP v Leach (2003) 139 A Crim R 64, Everett v The Queen (1994) 181 CLR 295, Green v The Queen (2011) 244 CLR 462, Griffiths v The Queen (1977) 137 CLR 293, Hili v The Queen (2010) 242 CLR 520, House v The King (1936) 55 CLR 499, Lacey v Attorney-General (Qld) (2011) 242 CLR 573, R v BJW (2000) 112 A Crim R 1, R v Henry (1999) 46 NSWLR 346, R v Hitanaya [2010] NTCCA 3, R v Indrikson [2014] NTCCA 10, Islam v R [2016] NSWCCA 233, R v Koumis (2008) 18 VR 434, R v MacDonnell (2002) 128 A Crim R 44, R v McKee & Brooks (2003) 138 A Crim R 88, R v McDonnell [1997] SCR 948, R v Osenkowski (1982) 30 SASR 212, R v Proom (2003) 85 SASR 120, R v Riley (2006) 161 A Crim R 414, R v Wilson (2011) 30 NTLR 51, Re Attorney-General’s Application (No 1) (1999) 48 NSWLR 327, Truong v The Queen (2015) 35 NTLR 186, Wong v The Queen (2001) 207 CLR 584, referred to.

A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014).

REPRESENTATION:

Counsel:

Appellant:D Morters

Respondent:  S Cox QC

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    B

Number of pages:  106

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

The Queen v Roe [2017] NTCCA 7

No. CCA 11 of 2016 (21556213)

BETWEEN:

THE QUEEN

Appellant

AND:

CHAD ROE

Respondent

CORAM:     GRANT CJ, SOUTHWOOD AND BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 25 July 2017)

GRANT CJ AND SOUTHWOOD J:

  1. This is a Crown appeal against a partially suspended sentence of imprisonment that was imposed on the respondent by the Supreme Court on 12 October 2016.

  2. On 4 August 2016 the respondent pleaded guilty to a single count on an indictment dated 5 May 2016. The count charged that contrary to ss 5(1) and (2)(b)(iA) of the Misuse of Drugs Act (NT) between 22 July and 21 October 2015 the offender unlawfully took part in the supply of a commercial quantity of methamphetamine. The supply pleaded on the indictment was constituted by a number of instances of supply to different persons forming part of a series of offences of the same or similar character[1] over a continuous period of approximately three months.  The maximum penalty for this offence is imprisonment for 25 years.

  3. On 12 October 2016 the respondent was sentenced to imprisonment for three years and nine months backdated to 10 November 2015.  The sentence of imprisonment was suspended on conditions after the respondent had served one year and nine months in prison.  The sentence was suspended after one year and nine months instead of two years because it was a condition of the suspended sentence that the respondent was to enter a 12 week residential rehabilitation program immediately upon being released from prison.  An operational period of two years from the date of the respondent’s release from prison was fixed.

  4. The conditions of the suspended sentence were as follows.

    For the operational period of two years from the date of release from prison –

    1.    The respondent will be under the ongoing supervision of a probation and parole officer.  He must obey all reasonable directions from his probation and parole officer and he must report to his probation and parole officer within two clear days after his release from prison.

    2.    The respondent must tell his probation and parole officer of any change of address or employment within two clear working days after the change.

    3.    The respondent must not leave the Northern Territory, except with the permission of his probation and parole officer.

    4.    On the respondent’s release from prison and as directed by his probation and parole officer, the respondent will immediately enter into the Sunrise Centre Residential Rehabilitation Program or any other program assessed as suitable for him, participate fully in that program and do nothing to cause his early discharge from that program.

    5.    The respondent shall not consume a dangerous drug and he will submit to testing, as directed by his probation and parole officer for the purpose of detecting the presence of dangerous drugs.

    6.    The respondent will participate in assessments, counselling and/or treatment, as directed by his probation and parole officer.

    7.    The respondent will submit to a curfew as directed by his probation and parole officer and he will not leave the nominated residence without prior permission from his probation and parole officer, except in the case of medical or dental emergency.

    8.    While residing and participating in the residential rehabilitation facility, the respondent will wear or have attached an approved monitoring device and allow the placing or installation in and retrieval from the premises occupied by the respondent any equipment necessary for the effective operation of the monitoring device.

    9.    The respondent will comply with the electronic monitoring rules as stipulated in the Rules for Electronic Monitoring document.

  5. A number of observations may be made about those conditions. 

  6. First, the prohibition on the consumption of dangerous drugs and the obligation to submit to testing for those substances during the two-year operational period cannot be characterised as punitive or onerous in nature.  It is simply a requirement that the respondent comply with the law during a period in which he remains subject to sentence and would otherwise have been imprisoned. 

  7. Secondly, the requirement to submit to a curfew as directed and not leave the nominated residence without prior approval during periods of curfew would subsist only if directed by the probation and parole officer.  Whether such a direction is made would depend on the probation and parole officer’s assessment of the respondent’s progress in the residential rehabilitation course.  If the respondent performed well and received a positive exit report from the Sunrise Centre it is unlikely that a curfew would be imposed unless the respondent failed to comply with his other conditions of supervision.  If there were concerns about the respondent’s progress at the Sunrise Centre, a curfew might be imposed for a short period of time.  It is most unlikely that the respondent would be subject to a curfew for the whole period of his supervision. 

  8. Finally, the requirement that the respondent wear an electronic monitoring device while residing and participating in the residential rehabilitation facility was directed to the 12 week residential rehabilitation program at the Sunrise Centre the appellant was required under condition 4 to undertake immediately upon his release.  There was no other residential rehabilitation program in contemplation.  Again, it would be incorrect to suggest that the respondent would be subject to that requirement throughout the whole of the two-year operational period.

  9. The sole ground of appeal is that the sentence of imprisonment is manifestly inadequate.

    Crown appeals

  10. This Court has recently had occasion to review and consider the principles governing Crown appeals against sentence.[2]  For ease of reference we repeat those observations here.

  11. Crown appeals against sentence should be a rarity brought only to establish some matter of principle, and to afford an opportunity to the Court of Criminal Appeal to perform its proper function in this respect; namely, to lay down principles for the guidance of courts sentencing offenders.[3]  The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.[4]

  12. As to what will constitute an error in point of principle, in R v Riley this Court stated:[5]

    In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle.  His Honour said:

    “It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards,



    constitute error in point of principle which the Crown is entitled to have this Court correct.”

  13. These remarks do not operate to displace the principle expressed by King CJ in R v Osenkowski, namely:[6]

    It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where the judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for leniency which has been traditionally extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of an offender’s life might lead to reform.  The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

  14. The principles enunciated in House v The King[7] remain applicable to the determination of manifest inadequacy.[8]  In the oft-quoted passage from that decision, the High Court stated:[9]

    The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if
    it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.  Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons.  Its authority to do so belongs to it only in virtue of its general appellate power.  But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R v Sidlow).  Lord Reading LCJ said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R v Wolff.). Lord Hewart LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R v Dunbar).

  15. In Hili v The Queen, the plurality reasons contain the following observations concerning the assessment of manifest inadequacy, in the absence of any assertion of specific error, on the basis that the sentence subject to appeal was unreasonable or plainly unjust:[10]

    [A]ppellate intervention on the ground that the sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases”.  Rather as the plurality went on to say (72) in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the statement of the reasons.

    […] But what reveals manifest excess, or inadequacy, of sentence is consideration of all the matters that are relevant to fixing the sentence.  The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

    The applicants’ submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge’s findings of fact or reasons.  That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error.  That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising.  The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal.

  16. Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be re-sentenced.  In R v BJW the New South Wales Court of Criminal Appeal stated:[11]

    The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional.  However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct.  The case must be a compelling one before this Court will interfere.  It is not sufficient that this Court would itself, in the position of the sentencing judge, have imposed a more severe sentence.  However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error.  Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere.  (Footnotes omitted)

  17. As to the exercise of the residual discretion, in Green v The Queen the plurality of the High Court stated:[12]

    A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.

  18. That principle has been accepted and applied by this Court in R v Hitanaya[13] and R v Wilson.[14]  In R v Hitanaya this Court stated:[15]

    The principles governing Crown appeals are not in doubt and are well known.  They were discussed in R v Riley [(2006) 161 A Crim R 414 at [18]-[20]] and it is unnecessary to repeat that discussion. Even if the manifest inadequacy is such as to demonstrate error in point of principle, the Court must carefully consider the next step which involves determination as to whether this is one of those rare and exceptional cases in which the Crown appeal should be allowed and the respondent resentenced.

  19. Following Hitanaya, and before Wilson was decided, s 414(1A) of the Criminal Code was enacted to provide that in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence.  In R v Wilson[16] Riley CJ considered the impact of s 414(1A) of the Criminal Code on the Court’s residual discretion, and described the ambit of the discretion in light of that section.  His Honour stated:[17]

    [Section 414(1A) of the Criminal Code] removes any need for the Court of Criminal Appeal to give consideration to ensuring that Crown appeals are “rare and exceptional”. Responsibility in that regard rests with the Director of Public Prosecutions.

    ….

    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.

    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.

  20. Accordingly, the principle of double jeopardy no longer requires this Court to ensure that appellate intervention is rare and exceptional in the manner spoken of in Hitanaya.  It remains the case, however, that this Court will not intervene where no point of principle arises, and will be slow to intervene where there is a countervailing factor which may warrant the exercise of the residual discretion.

    The facts

  21. The facts of the offence committed by the respondent are as follows.

  22. On 4 June 2015, Drug and Organised Crime Squad detectives commenced an operation codenamed ACOSY to investigate the supply and distribution of methamphetamine through a syndicate operating in Darwin.  The respondent was identified as the primary target of the operation.  Between 23 July and 20 October 2015 detectives monitored the movements of and communications between the respondent, co-offenders and others involved.

  23. While the respondent was residing in Darwin between 23 July and 22 August 2015, he engaged in the supply of a commercial quantity of methamphetamine.  He obtained quantities of methamphetamine from unknown sources and sold the drug for profit.  Typically, the offender obtained methamphetamine in quantities known as an “eight-ball”[18] and then sold the drug to end users in smaller quantities.  An eight-ball contains 3.5 grams of methamphetamine (or 1/8 of an ounce in the Imperial measure).  The respondent sold the drug in “point” (0.1 gram), “quarter” (0.25 gram), “half” (0.5 gram), “full” (1 gram), and “half-ball” (1.75 grams) quantities.

  24. In the period between 23 July and 22 August 2015 the respondent obtained each eight-ball of methamphetamine for between $2,200 and $2,600.  He sold a point for between $100 and $150, a quarter for between $250 and $300, a half for between $500 and $600, a full for between $1,000 and $1,200, and a half-ball for between $1,250 and $1,500.  Each eight-ball obtained by the offender was divided and sold for varying amounts up to $5,250.

  1. Between 23 July and 22 August 2015 police intercepted 670 SMS messages and 234 telephone calls between the respondent and the drug users he supplied.



  2. From his involvement in the supply of methamphetamine in Darwin the respondent became aware that methamphetamine could be obtained for significantly lower prices in the southern States.  At some time prior to 22 August 2015 the respondent made arrangements with unknown parties in Melbourne to purchase ounce (28 gram) quantities of methamphetamine for between $3,000 and $4,000.  On 22 August 2015 he flew to Melbourne and resided there until 12 November 2015 when he was extradited to the Northern Territory.

  3. While in Melbourne the respondent purchased ounce and half ounce quantities of methamphetamine which he transported to Darwin by various means to be sold.  Sometimes the methamphetamine was transported to Darwin by the respondent’s associates flying to Darwin with the drug.  Sometimes the methamphetamine was transported to Darwin by secreting the drug in various packages together with other items and mailing the packages containing the drug to Darwin.

  4. Upon arrival of the methamphetamine in Darwin the respondent would provide instructions to associates in Darwin on how to distribute the drug to his pre-existing customers.  On occasions the respondent would facilitate contact between his users and those selling the drug on his behalf.  If sold by the point an ounce of methamphetamine could be sold for up to $42,000.  The offender thereby made a profit.

  5. Between 22 August and 20 October 2015 police intercepted 464 SMS messages and 191 telephone calls about the supply of methamphetamine which were sent from and received by the respondent’s mobile telephone.  During this period the respondent was engaged in the supply of a commercial quantity of methamphetamine.  It is irrelevant for these purposes whether those messages and calls – or the 670 messages and 234 drug-related calls from the previous month in Darwin – went to a few individuals on a number of occasions or to a great many different persons.  It was an agreed fact that the respondent was operating a supply network, and the messages and calls were necessarily directed to the operation of that network.  The objective seriousness of the offending does not depend on whether the appellant was communicating directly with the users at the bottom of that network, or was conducting the supply operation by dealing with a limited number of people at higher levels in the network.

  6. It is estimated that the respondent supplied in excess of 200 grams of methamphetamine in the Northern Territory.  The respondent agreed with this estimate.

  7. On 10 November 2015 the respondent was arrested in Melbourne, and on 12 November 2015 he was extradited to Darwin.  He arrived in Darwin on 13 November 2015 and was remanded in custody on 16 November 2015.

  8. On the basis of those matters, the sentencing judge made the following observations:[19]

    Although the Crown has not been able to accurately quantify the amount of methamphetamine supplied by you during the relevant period, it is estimated, and you agree with the estimate, that the quantity supplied was in excess of 200 grams.  It is not part of the agreed facts but I have calculated that if the 200 grams had been sold by the point, at $150 per point, that would have generated gross receipts of some $300,000.

    I acknowledge that, at least after you moved to Melbourne, you were not selling methamphetamine by the point, and that even prior to moving to Melbourne, you were probably not selling all of the methamphetamine by the point.  I also acknowledge that my calculation assumes a premium price of $150 per point, which was not necessarily the case in relation to all of the methamphetamine sold by you or by those who sold it on your behalf, or those that bought it from you for further resale.  That is still a lot of money.

  9. His Honour also found:[20]

    In your case, I am by no means convinced that your usage of methamphetamine, even your addiction to methamphetamine, provides very much by way of mitigation.  You engaged in a business with the aim of making substantial profits.  When you realised that even greater profits could be made by procuring the drugs interstate and importing them into the Darwin market, you made that business decision.

  10. The effect of this finding is that there is not a causal relationship of any significance between the respondent’s misuse of methamphetamine and his offending.  For that reason, he is not less responsible or culpable for his actions due to his drug addiction.

    Objective seriousness

  11. The offending is objectively very serious.  The maximum penalty for the offence is imprisonment for 25 years.  Methamphetamine is a particularly dangerous and insidious drug which causes considerable harm in the community.  Such offences are prevalent.  During the period of three months pleaded on the indictment it is estimated the quantity of methamphetamine supplied by the respondent was more than five times the commercial quantity of methamphetamine.  Within that period of three months he expanded his business to a stage where he was importing the drug from Melbourne, engaging couriers to bring the methamphetamine to Darwin from Melbourne, and engaging drug dealers to sell the drug for him in Darwin to a network of drug users that he had established while he was in Darwin.  He became the principal of a drug trafficking business.  

  12. The respondent did not come from a deprived background.  He had been in well-paid employment and, as a mature adult, he deliberately chose to engage in criminal activity to make a profit.  The respondent made a significant amount of profit.  He grossed hundreds of thousands of dollars in a short period of time and only ceased his drug trafficking business when he was arrested in Melbourne following a covert police operation.

  13. As Professor Freiberg has stated, “The amount of money involved in an offence, and particularly the profit gained or sought to be gained by a criminal venture, is a significant matter in determining the degree of criminality.”[21]  In DPP (Cth) v Gregory the Victorian Court of Appeal stated:[22]

    The size of the benefit obtained by an offender from the commission of the offence is a relevant sentencing factor even if “benefit” is not an element of the offence as it may have a significant bearing on the moral culpability of the offender or the need for deterrence.

  14. The greater the actual or expected gain for a drug offence, the higher the offender’s moral culpability and the more severe the sentence should ordinarily be.[23]  Commercial criminal ventures such as trafficking in drugs will be treated more severely than offences with lesser profit margins.[24]

  15. The offence is aggravated by the facts that it was committed in company with others and it involved substantial planning and organisation.

    Subjective factors

  16. The respondent was born on 3 September 1983.  He was 31 years of age when he committed the offence which is the subject of this appeal.

  17. The respondent completed year 10 of high school.  He has a good employment history.  He has worked in the mining industry since leaving school.  He is a qualified machine operator.  The respondent and his partner travelled to Darwin in 2012 and he took up employment with the Ranger Uranium Mine at Jabiru.  He remained in that employment for about two years.  He stopped work at the Ranger Uranium Mine when he and his partner started having relationship problems.  He then obtained employment at the INPEX construction site.  His partner also worked at that site.

  18. In 2015 he ceased employment at INPEX because he could not stop using methamphetamine.  Not long after he stopped work, he and his partner separated.

  19. The respondent has used methamphetamine since he was 19 years of age.  He started taking the drug during his rostered days off while he was working in Kalgoorlie.  His drug taking increased during the two years prior to his arrest and he claims he was using a gram of methamphetamine a day when he was arrested.  As already noted, the respondent did not come from a deprived background.  Even if it were accepted that the commission of the offence was somehow a consequence of his use of or addiction to drugs, there is nothing to suggest that use or addiction was the result of social or economic disadvantage, poor education or emotional or physical abuse so as to lower his moral culpability.[25]

  20. The respondent has a very minor criminal history in Western Australia.  All his convictions in Western Australia are for driving offences.  The respondent has two prior convictions for minor drug offences in the Northern Territory.  He has been convicted of possessing an implement used to administer a dangerous drug and possessing a traffickable quantity of methamphetamine.  He committed those offences in February 2015 and he received an aggregate fine of $1,250 for those offences.

  21. The respondent’s misuse of methamphetamine makes his prospects of rehabilitation difficult to assess at this point in time.  The completion of the Safe Sober Strong Program does not necessarily mean that the respondent has taken any significant step to overcoming his misuse of drugs.  That rehabilitation program is an introductory level program and it is recognised that addiction to methamphetamine is a chronic, relapsing condition which is a counter-indicator of good prospects of rehabilitation.  In R v Proom Doyle CJ stated:[26]

    Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution.  In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.

  22. In this case the respondent has been using an insidious, highly addictive drug.  The drug can quickly lead to addiction and a resistance to any form of treatment.  As is apparent from the offender’s particular circumstances, the loss of his job, the loss of his partner, and the convictions for drug offending in 2015 proved insufficient incentive for him to seek assistance to overcome his misuse of the drug at that time.

    Sentencing principles for drug offences

  23. The supply and use of methamphetamine are matters of widespread concern in the community.  Such offending is prevalent.  The supply and use of the drug has an immediate and primary impact on individual users who suffer adverse physical and mental health outcomes.  Methamphetamine use also has obvious and predictable adverse consequences for the family of the individual user.  The proliferation of the drug is also detrimental to the wider community, as use of the drug quickly leads to antisocial and criminal conduct including violent behaviours.  As a consequence, punishment, denunciation and deterrence are the main sentencing objects.

  24. In recent times, the community generally and this Court specifically have become increasingly vigilant concerning the dangers presented by the methamphetamine trade.  The decision of this Court in Truong v The Queen[27] was something of a watershed in this respect.  In Truong, this Court stated:[28]  

    The courts in the Northern Territory have an obligation to protect the Northern Territory community from the dreadful effects of methamphetamine usage and addiction.  Courts have for many years stressed the need, in cases such as the present, for sentencing judges to impose condign sentences which appropriately reflect the elements of retribution, punishment and deterrence, both personal and general.

    ….

    General deterrence was particularly important in the sentencing of the applicant.  There was a clear need to send a strong deterrent message to people like the applicant: an interstate resident who supplied methamphetamine into the Darwin market, who was prepared to run the risk of detection in the expectation of significant profit, perhaps a greater profit than could be made supplying methamphetamine in his home State.  In terms of general deterrence, the message applicable to both Territory and interstate residents is that any offenders who import commercial quantities of dangerous drugs into the Northern Territory from interstate risk lengthy terms of imprisonment.

  25. The assessment of moral culpability and objective seriousness in these circumstances requires consideration of the following relevant factors: the great social consequences that follow from the commission of the offence;[29] the existence of a commercial venture in the supply of drugs; the role of the offender in that enterprise; the level of his or her participation in the offence; the reward which the offender hoped to gain from participation in the offence; the difficulty in detecting the offence; and the quantity of drugs involved.

  26. In Wong v The Queen,[30] which was a heroin importation case, the plurality of the High Court stated:

    In general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted.

  27. In R v MacDonnell[31] Wood CJ at CL stated:

    It is also to be accepted that the mere quantity of the drugs is not the sole, or even the principal, determinant for sentencing in relation to drug offences.  What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity.

  28. The statements of principle in Wong v The Queen and MacDonnell are important.  They recognise that there is a hierarchy of drug offences based on the factors which have been identified in those passages.  A person who engages in a business of trafficking in drugs of dependency usually commits a more serious offence than a person who acts as a drug courier on one occasion.  There are identifiable ranges of sentences which reflect the level of drug offence committed by an offender.

  29. It is also well established that when sentencing offenders for trafficking in commercial quantities of drugs of dependence, denunciation, community protection and deterrence will be the dominant sentencing purposes while rehabilitative purposes will be of secondary importance.  As Fox and Freiberg observe: “Any mitigating aspects of the offence may be overridden.”[32]

  30. In DPP v Leach[33] Batt JA stated:

    [T]he very serious nature of this offence of trafficking in methylamphetamine in a commercial quantity, objectively considered, required general deterrence and denunciation by the court of the respondent's conduct to prevail over the rehabilitation of the respondent as the principal purposes to be effectuated by the sentence.  As Charles JA said in R v Howden, there is little distinction to be drawn between those who traffic in methylamphetamine and those who deal in heroin.  Amphetamine, as his Honour went on to say, is a very deleterious substance.  Parliament's view of the seriousness of the offence is shown by the maximum penalty it has fixed.  In this case, the applicant engaged in the trafficking with her eyes open as to the seriousness of the offence and the seriousness of the consequences, if she were to be discovered.  She required a high price for her participation (although its precise quantification is not known).  She knowingly played for high stakes.  The quantity of the drug trafficked in was almost twice that defined as the minimum for a commercial quantity of this drug.

  31. That same approach was adopted by this Court in R v Indrikson, where it stated:[34]

    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.

  32. Finally, drug addiction is not a factor that will necessarily weigh heavily, or at all, in the sentencing process.[35]  In R v Proom[36] Doyle CJ stated:

    The unlawful trade in drugs, and drug addiction, with all their adverse consequences for individuals, their families and for society, are major problems in our society.  To treat drug addiction as a routine mitigating circumstance when sentencing an offender, would conflict with attempts made through the criminal law and by other means to deal with unlawful trading in drugs and with drug addiction.  To say that is not to deny that addiction may be a form of illness.  But Parliament has made it clear that the courts must treat unlawful dealing in drugs severely.  It would seem curious in that context to treat as a mitigating factor, the


    fact that a crime was committed to obtain money with which to purchase drugs in breach of the law.

  33. In a similar vein, in R v Koumis[37] the Victorian Court of Criminal Appeal stated:

    Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate.  The sentence to be fixed has to reflect the seriousness of the crime of trafficking in substantial quantities of a drug of dependence.  Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence.  Generally speaking, addiction and any consequential impairment of judgment will not have any significant mitigatory effect upon those sentencing considerations.

  34. As already noted, the sentencing judge did not find any causal relationship of significance between the respondent’s misuse of methamphetamine and his offending.  Even if that were not the case, self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.[38]  The predictable consequences of drug addiction include involvement in the illicit drug trade in at least some degree.  In this case the respondent determined his involvement would include the supply the drug for commercial gain.  In that endeavour he was motivated by greed.  That motivation and his subsequent conduct perpetuated the trade and facilitated the supply of a significant quantity of methamphetamine into the Northern Territory community.  In those circumstances, the sentencing exercise is appropriately undertaken on the basis that the respondent’s character for the purpose of this offending is that of the drug dealer rather than the drug addict.

    Comparable sentences

  35. The salient features of the crime committed by the respondent are that: for a continuous period of two months the respondent was the principal in a drug trafficking business that was conducted from Melbourne; the business involved the shipment of drugs into the Northern Territory to a group of drug users connected to the respondent; drug couriers engaged by the respondent were used to take the drugs to the Northern Territory; in addition, packages were mailed from Melbourne containing methamphetamine secreted in lawful goods in an attempt to avoid detection; and the respondent engaged drug dealers to sell the methamphetamine in Darwin.  The respondent took a commercial approach to the undertaking.  He moved his drug trafficking business from Darwin to Melbourne in order to maximise his profits.  As has already been described, the respondent supplied more than five times the commercial quantity of methamphetamine and the business had the capacity to produce gross revenue of approximately $300,000 over a period of three months.

  36. The Crown submits that the primary error of principle made by the sentencing judge was the adoption of the wrong “starting point”[39] for offending of the type committed by the respondent.  This appears to be a reference to the Canadian approach to guideline sentences by appellate courts.  In R v McDonnell,[40] McLachlin J stated:

    The starting point approach was developed as a way of incorporating into the sentencing process the dual perspectives of the seriousness of the offence and the need to consider the individual circumstances of the offender.  It represents a restatement of the long standing practice of sentencing judges of beginning by considering the range of sentence that has been imposed for similar criminal acts followed by a consideration of the factors peculiar to the case and the offender before them.

  1. The Crown submission is that the nature of the drug supply activity engaged in by the respondent should have been the primary focus in the sentencing exercise, and the nature of the respondent’s activity is clearly distinguishable from the offending under consideration in cases such as Truong v The Queen.[41]  By his conduct, the respondent placed himself in a significantly higher category of supply activity.  He became, in effect, the number two in the ranks of this particular syndicate.  His operation developed into a far more sophisticated and sustained operation than was apparent, for example, in Truong.  The Crown submission is ultimately that it is apparent from the relevant comparable sentences that the proper starting point was well above the five-year term adopted by the sentencing judge for this offence.

  2. In Wong v The Queen,[42] Gleeson CJ stated that, both in submissions and in reasons for judgment, “inadequacy or excessiveness is often demonstrated by a process of comparison” and that “[s]uch a process is a legitimate forensic tool for advocates and judges; and has been employed for many years”.[43]  However, caution must be exercised not to adopt an artificially rigid approach to the process of comparison, because it is not for the courts to create subsets of a legislatively prescribed offence.[44]  Consistency in sentencing is an important outcome, but does not resolve to “numerical equivalence”.[45]  Like cases are to be treated in like manner[46] whilst preserving the legitimate breadth of the sentencing discretion. 

  3. Counsel for the Crown submitted that apart from one sentence, the comparable sentences relied on by counsel for the respondent involved offending of a different and much less serious character than the offending which is the subject of this appeal; the majority of comparative sentences relied on by the respondent were imposed on the respective offenders for offences of acting as a drug courier on a single occasion, or for possession of methamphetamine on a single occasion; and the majority of those sentencing exercises did not involve offenders acting as principals in drug trafficking businesses conducted over a sustained period of time, or offenders who had engaged others to conduct drug trafficking on their account.

  4. As can be seen from the survey of sentencing dispositions conducted below, the Crown’s submission concerning the comparable sentences relied on by the respondent is not entirely accurate.  A number of the cases to which reference was made by the respondent involved continuing offending which was carried on for commercial gain.  However, demarcation lines between certain categories of offending do emerge from a survey of the comparable sentences to which reference was made by the parties.

  5. In Truong v The Queen[47] the offender was sentenced as a drug courier.  He pleaded guilty to one count of supply a commercial quantity of methamphetamine.  He flew from Sydney to Darwin with 55.81 grams of methamphetamine hidden inside his underwear.  Further investigation by police revealed that in the period leading up to the offending the offender had received regular payments totalling $16,800 via Western Union and $2,500 via Australia Post.  The mobile telephone in his possession contained numerous messages indicating he was involved in the supply of dangerous drugs.  The offender admitted that he was involved in the business of drug supply for commercial gain and was bringing the methamphetamine to Darwin in furtherance of that purpose.  

  6. The offender was 27 years of age.  He had a criminal history including prior convictions for drug offences and he was on bail in relation to supply charges pending in the New South Wales District Court which had not been resolved at the time of his arrest in the Northern Territory.  The offender started using methamphetamine when he was 17 or 18 years of age, but he chose not to give evidence about being addicted to methamphetamine when he committed the offence.  He was sentenced as a courier to four years and 10 months’ imprisonment with a non-parole period of two years and five months.  The starting point was a sentence of imprisonment of six years. 

  7. Advertence to the offender’s unresolved charges in New South Wales and the fact that he was involved in drug supply for commercial gain cannot obscure the fact that this particular offender was prosecuted for and convicted of a single incident of supply of methamphetamine.  The further information obtained by police was only relied on by the Crown to put the offending in context, and to rebut certain false statements the offender had made about his motive or purpose for committing the offence.  The nature of the offending dealt with in Truong stands in sharp contradistinction to the seriousness of the respondent’s offending having regard to such matters as duration, organisation, place in the network, quantity and commercial gain.  The latter offending was obviously and irrefutably far more serious in nature.

  8. In The Queen v Leo Salandanan[48] the offender was sentenced for one count of supplying 42.6 grams of methamphetamine, which is 2.6 grams more than the commercial quantity of the drug; and one count of being in possession of a forged driver’s licence, knowing it to be forged with the intent that it be uttered.  The offender came to Darwin to obtain the methamphetamine and supply it to others.  For the count of supplying methamphetamine the offender received a sentence of imprisonment of two years.  The total sentence was two years and four months’ imprisonment which was suspended after 12 months.  The offender was fifty years of age at the time he was sentenced and had one prior conviction for armed robbery and burglary in Victoria in 2006.  The circumstances of that case were clearly very different to this case.

  9. In The Queen v Barry Esparon[49] the offender pleaded guilty to three counts on an indictment and one count on complaint.  Count one on the indictment was the unlawful possession of 172 grams of methamphetamine.  Count two on the indictment was the unlawful possession of 15.84 grams of MDMA.  Count three on the indictment was the unlawful supply of GHL.  The count on complaint charged the offender with taking a flight on an aeroplane on a ticket with a false name.  The offender acquired the dangerous drugs in Melbourne for the purpose of taking them to Darwin to sell for profit and to support his drug dependency.  The offender was 34 years of age and had a relatively limited criminal history.  He received an aggregate sentence of imprisonment for five years for the three counts on the indictment plus a sentence of eight months’ imprisonment for the count charged on the complaint.  Four months of the eight months’ sentence of imprisonment was ordered to be served cumulatively on the sentence of imprisonment of five years, giving a total sentence of imprisonment of five years and four months.  A non-parole period of 32 months was fixed.  The offender received a discount of 18 percent for his pleas of guilty, giving a starting point of approximately six years’ imprisonment.

  10. In The Queen v Joel Condello[50] the offender pleaded guilty to a single count of possessing 110.64 grams of methamphetamine.  He purchased the methamphetamine in Melbourne and flew to Darwin with it.  His plan was to sell the methamphetamine in one ounce lots.  He intended to make a substantial profit.  The offender was 28 years of age.  He had a minimal criminal history with no prior convictions.  He had previously received a no conviction bond for the offence of using a carriage service to menace a person.  Despite the fact he was not drug dependent, the offender was accepted as suitable for the Banyan House Rehabilitation Program.  He was sentenced to four years’ imprisonment which was suspended after he had served eighteen months.  It may be noticed that the head sentence imposed on this offender was greater than the head sentence imposed on the respondent to this appeal.  The sentence was discounted by 20 percent, giving a starting point of imprisonment for five years.

  11. In The Queen v Anthony David Orrell[51] the offender pleaded guilty to five counts on an indictment, including one count of supplying methamphetamine and one count of possessing 191.39 grams of methamphetamine.  The offender and a co-offender, Zayley Ainslie, came into possession of a quantity of methamphetamine, sold some of that quantity to a number of associates, and stored the remaining 191.39 grams of the methamphetamine at the home of another co-offender.  The offender and co-offender were found to be in possession of more than 20 mobile telephones.  

  12. The offender was 31 years of age and had an extensive criminal history, including a number of prior convictions for drug offences.  The sentencing judge found the offender to be a person of settled criminal habits. After a discount of 20 percent for his pleas of guilty, the offender was sentenced to four years and nine months’ imprisonment, giving a starting point of six years’ imprisonment.  The offender was also dealt with for other offences.  He ultimately received a total sentence of six years with a non-parole period of three years.  The sentencing judge stated that even if the offender was only dealt with for the first lot of offences a non-parole period would have been fixed.

  13. The offending committed by Mr Orrell was similar but arguably more serious offending than that engaged in by the respondent to this appeal before he moved to Melbourne.  During the period he was in Darwin the respondent typically obtained methamphetamine in 3.5 grams lots and sold the drug in smaller amounts.  What had to be acknowledged in the respondent’s sentencing process, however, was that the nature of his offending changed materially and substantially following his move to Melbourne.

  14. The offender in The Queen v Zayley Ainslie[52] was the co-offender of Anthony David Orrell.  She pleaded guilty to the same counts.  The offender had seven prior convictions for the possession of drugs.  The sentencing Judge found the offender was engaged in the ongoing commercial supply of significant quantities of methamphetamine.  She made a substantial amount of money and she stood to make considerably more.  She was 26 years of age and had a two year old daughter.  She had become addicted to methamphetamine as a teenager.  She started the Safe Sober Strong Program while on remand and was bailed to Banyan House to undertake a residential rehabilitation program.  She was still in Banyan House at the time she was sentenced and her progress in the rehabilitation program had been positively reported.  

  15. The offender received a discount of 20 percent for her pleas of guilty and was sentenced to four years and nine months’ imprisonment suspended after five months on conditions that she be supervised for three years.  The starting point adopted was six years.  The criminal activity involved was similar to that engaged in by the respondent before he moved to Melbourne.  This might be considered a lenient sentence.  However, the offender had a young child, the offender was undertaking a rigourous rehabilitation course in which she had made significant progress, and there is an understandable reluctance in some circumstances to send a person back to prison after they have embarked on a rehabilitation course in the community.  Of course, that reluctance is properly conditioned on the stringency and utility of the rehabilitation course, and the offender’s particular subjective circumstances.

  16. In The Queen v Luke Coleman[53] the offender pleaded guilty to three counts on an indictment for supplying a commercial quantity of methamphetamine over a two month period, supplying cocaine over a two month period, and supplying a commercial quantity of MDMA over a two month period.  He was the offender who supplied the drugs the subject of the sentence in the matter of Nigel Marsh (discussed further below).  He was a first offender.  After a discount of 50 percent for cooperation with the authorities and his pleas of guilty, he was sentenced to three years and six months’



    imprisonment suspended after 18 months.  The matter is of little value as a comparator because of the extent of the offender’s cooperation with police.

  17. In The Queen v Anthony Zappia[54] the offender pleaded guilty to possessing a commercial quantity of cannabis and possessing a commercial quantity (56.3 grams) of methamphetamine.  During a trip to Adelaide to visit his family during the 2014/15 Christmas period the offender became aware that a large quantity of dangerous drugs was being sold cheaply.  He purchased the cannabis and methamphetamine for $25,000 from the proceeds of the sale of a house.  He intended to consume a significant quantity of the drugs himself.  He hid the drugs in various containers and placed them in the back of a utility owned by his father.  While driving to Alice Springs his utility broke down and the containers in which the drugs were placed were transferred to another vehicle which was intercepted by police.

  18. The offender was 33 years of age and his only prior convictions related to driving offences.  He had a good work history.  The offender was dealt with on the basis that he possessed the drugs for commercial gain and was motivated by greed.  For the charge of possessing 56.3 grams of methamphetamine he was sentenced to three years and nine months’ imprisonment following a discount of 25 percent for his guilty pleas.  The starting point for his sentence of imprisonment was five years.  He was sentenced to an aggregate sentence of five years’ imprisonment suspended after he had served two years in prison.  It may be noticed that this sentence was more severe than the sentence of imprisonment imposed on the respondent despite an obvious disparity between the objective levels of seriousness of the offending.

  19. In The Queen v Dale Shirdon[55] the offender pleaded guilty to taking part in the supply of a commercial quantity of methamphetamine between 29 March and 1 April 2014.  The offender was a courier who transported a commercial amount of methamphetamine from Sydney to Darwin.  He strapped 480 grams of methamphetamine to his body and flew to Darwin.  He was 24 years of age and had two prior convictions for minor drug offences.  He had participated in the Safe Sober Strong Program while on remand.  The offender was sentenced to four years’ imprisonment suspended after 18 months.  The starting point was five years and the sentencing judge stated that the starting point may well have been higher had it not been for considerations of parity arising from the sentence imposed on a co-offender.

  20. Counsel for the Crown submitted that the sentences imposed on the offenders in The Queen v Nigel Marsh,[56] The Queen v Benjamin Glenn Watts[57] and The Queen v Darryl Paul Milton[58] involved comparable offending and comparable circumstances to the offending in this case.  In each of those cases the starting point was significantly higher than the starting point in the case on appeal.

  21. In The Queen v Nigel Marsh[59] the offender pleaded guilty to four counts on an indictment including supplying a commercial quantity of methamphetamine over a period of two months, supplying cocaine over the same period, and supplying a commercial quantity of MDMA over the same period.  The offender was involved in the supply of a significant quantity of drugs over a two month period.  The offender supplied 196 grams of methamphetamine to others that was provided to him in three separate instalments by a co-offender who sourced the drugs in Brisbane (dealt within the matter of The Queen v Luke Coleman, discussed above).  He was to receive a further amount of 156.74 grams of methamphetamine but the co-offender was arrested.  That gave a total notional supply of 352.74 grams of methamphetamine.  

  22. The offender distributed the drugs with the use of five drug dealers.  He had completed the Safe Sober Strong Program while on remand and had been assessed as suitable for the Banyan House Residential Program.  It was found that the offending was at such a level of objective seriousness that it considerably outweighed the weight to be given to the offender’s prospects of rehabilitation and mitigation.  After a discount of 25 percent for his pleas of guilty the offender was sentenced to five years and three months’ imprisonment with a non-parole period of two years and eight months.  The starting point was a sentence of seven years’ imprisonment.  The starting point was constrained by the principle of parity and the sentence that had been imposed on the co-offender who supplied the drugs from Brisbane.  The offending is similar to the offending engaged in by the respondent.  The main distinguishing features are that the offender in that matter did not supply the drug from interstate and did not engage couriers to bring the drugs to Darwin from interstate.

  23. In The Queen v Benjamin Glen Watts[60] the offender pleaded guilty to three counts on indictment that between 1 October 2015 and 1 February 2016 he unlawfully supplied a commercial quantity of methamphetamine, unlawfully possessed a commercial quantity of MDMA, and unlawfully possessed Testosterone Enanthate.  On 9 February 2016 the offender was arrested and his motor vehicle and back pack were searched.  Police found 87 grams of methamphetamine, 190 MDMA pills, a vial of Testosterone Enanthate, $17,650 in cash, a blue notebook or ledger with various entries starting on 1 October 2015, a set of digital scales, three mobile telephones and firearms with ammunition.  The offender’s mobile telephones and SIM cards were examined and found to contain text messages concerning the supply of dangerous drugs.  

  24. The offender was interviewed by police and admitted the $17,650 in cash constituted proceeds from the sale of drugs.  His blue notebook recorded sales and money owed from sales of dangerous drugs to persons unknown since 1 October 2015.  The total value of drug sales recorded in the ledger was $366,000 over a four months period.  The offender admitted to dealing in commercial quantities of methamphetamine.  He had acquired significant assets as a result of his drug dealing.  The offender was a 27 year old man who had a history of misusing dangerous drugs.  He started misusing methamphetamine when he was 24 years of age.  He had one prior conviction for supplying methamphetamine on 14 April 2015.  For the count on the indictment of supplying methamphetamine he was sentenced to seven years and six months’ imprisonment.  A discount of 25 percent had been allowed, from a starting point of imprisonment for 10 years.  He received a total sentence of eight years’ imprisonment and a non-parole period of four years was fixed.

  25. In The Queen v Darryl Paul Milton[61] the offender pleaded guilty to supplying a commercial quantity of methamphetamine between 6 and 24 June 2014 and to receiving $20,500 obtained directly from supplying a dangerous drug to another person.  The offender was a fully patched member of the Hells Angels and he had been placed under observation during operation Navistar, which was conducted by the Drug and Organised Crime



    Squad Gangs Task Force.  During the period that he was under observation it is estimated that he came into possession of at least 280 grams of methamphetamine.  

  26. The offending involved a continuing commercial operation, it involved a number of transactions including a number of discrete receipts and supplies of methamphetamine, it was conducted for profit, and it involved a large number of consumers of the drug and substantial organisation and planning.  The offender had a criminal history in both New South Wales and the Northern Territory.  He misused drugs from time to time but was motivated to change his life and had expressed a willingness to attend counselling.  He had participated in the Safe Sober Strong Program while in prison.  The offender was sentenced to eight years and six months’ imprisonment with a non-parole period of four years and three months.

[16][2011] NTCCA 9; 30 NTLR 51.

[17]R v Wilson [2011] NTCCA 9; 30 NTLR 51 at [27].

[18]The name derives from the fact that an eight-ball contains an eighth of an ounce of methamphetamine in powdered form.

[19]Appeal Book at 40-41.

[20]Appeal Book at 42.

[21]A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters 3rd ed. 2014) at [4.160].

[22]DPP (Cth) v Gregory [2011] VSCA 145; 34 VR 1 at [41].

[23]A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters 3rd ed. 2014) at [4.160].

[24]Ibid.

[25]See, for example, R vMcKee & Brooks (2003) 138 A Crim R 88 at [12]-[13].

[26]R v Proom [2003] SASC 88; 85 SASR 120 at [50].

[27][2015] NTCCA 5; 35 NTLR 186.

[28]Truong v The Queen [2015] NTCCA 5; 35 NTLR 186 at [34], [36].

[29]Wong v The Queen [2001] HCA 64; 207 CLR 584 at [64].

[30][2001] HCA 64; 207 CLR 584 at [64].

[31][2002] NSWCCA 34; 128 A Crim R 44 at [33].

[32]A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters 3rd ed. 2014) at [4.95].

[33](2003) 139 A Crim R 64 at [3].

[34]R v Indrikson [2014] NTCCA 10 at [30].

[35]R v Koumis [2008] VSCA 84; 18 VR 434 at [53].

[36][2003] SASC 88; 85 SASR 120 at [47].

[37][2008] VSCA 84; 18 VR 434 at 53.

[38]R v Henry (1999) 46 NSWLR 346 at [185] per Spigelman CJ.

[39]Transcript of Appeal Proceedings, 6 April 2017, p 22.

[40][1997] 1 SCR 948 at 989. Her Honour was in the minority in the result, not in the description of the principle.

[41][2015] NTCCA 5; 35 NTLR 186.

[42][2001] HCA 64, 207 CLR 584.

[43]Wong v The Queen [2001] HCA 64; 207 CLR 584 at [12].

[44]Wong v The Queen [2001] HCA 64; 207 CLR 584 at [82].

[45]Barbaro v R; Zirilli v R (2014) 253 CLR 58 at [40].

[46]Wong v The Queen [2001] HCA 64; 207 CLR 584 at [6] per Gleeson CJ.

[47][2015] NTCCA 5; 35 NTLR 186.

[48]R v Leo Salandanan (SCC 21546121, Sentencing Remarks, 19 April 2016).

[49]R v Barry Esparon (SCC 21532746, Sentencing Remarks, 14 March 2016).

[50]R v Joel Condello (SCC 21547368, Sentencing Remarks, 12 February 2016).

[51]R v Anthony Orrell (SCC 21524915, Sentencing Remarks, 15 January 2016).

[52]R v Zayley Ainslie (SCC 21524916, Sentencing Remarks, 8 January 2016).

[53]R v Luke Coleman (SCC 21456234, Sentencing Remarks, 27 May 2015).

[54]R v Anthony Zappia (SCC 21502840, Sentencing Remarks, 13 August 2015).

[55]R v Dale Shirdon (SCC 21415715, Sentencing Remarks, 31 March 2015).

[56]R v Nigel Marsh (SCC 21456284, Sentencing Remarks, 12 October 2015).

[57]R v Benjamin Glenn Watts (SCC 21607820, Sentencing Remarks, 16 June 2016).

[58]R v Darryl Paul Milton (SCC 21429803, Sentencing Remarks, 8 January 2015).

[59]R v Nigel Marsh (SCC 21456284, Sentencing Remarks, 12 October 2015).

[60]R v Benjamin Glen Watts (SCC 21607820, Sentencing Remarks, 16 June 2016). 

[61]R v Darryl Paul Milton (SCC 21429803, 8 January 2015, Sentencing Remarks).

[62]R v Carlo Betti (SCC 21415888, 21415892, 21453401, 21447486, Sentencing Remarks, 15 September 2015).

[63]R v Mark Simpson (SCC 21415690, 21415731, 21447489, Sentencing Remarks, 27 May 2015).

[64]R v Carlo Betti (SCC 21415888, 21415892, 21453401, 21447486, Sentencing Remarks, 15 September 2015).

[65]R v Mark Simpson (SCC 21415690, 21415731, 21447489, Sentencing Remarks, 27 May 2015).

[66][2001] HCA 64, 207 CLR 584 at [65].

[67]Wong v The Queen [2001] HCA 64, 207 CLR 584 at [57].

[68]Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58].

[69]Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58].

[70]Wong v The Queen [2001] HCA 64, 207 CLR 584 at [60]. It will, of course, also be necessary to give appropriate weight to such matters in mitigation as manifest in the particular case: Re Attorney-General’s Application [No. 1] (1999) 48 NSWLR 327 at [49].

[71]Wong v The Queen [2001] HCA 64, 207 CLR 584 at [64].

[72]Appeal Book at 15.

[73][2015] NTCCA 5; 35 NTLR 186.

[74]Islam v R [2016] NSWCCA 233 at [95], [98], [103].

[75]Sentencing Act, s 40(1).

[76]Notice of Appeal, AB 46.

[77] Sections 40-43 of the Sentencing Act (NT).

[78]Hili v The Queen [2010] HCA 45; 242 CLR 520 at [77] per Heydon J.

[79]R v BJW [2000] NSWCCA 60 at [29]; 112 A Crim R 1.

[80]Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58].

[81]House v The King [1936] HCA 40; 55 CLR 499; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].

[82][2015] NTCCA 5; 35 NTLR 186 at [26].

[83]     The Crown Facts are set at AB 24-26 and summarised in the sentencing remarks at AB 39-41.

[84]AB 26.

[85]AB 26, 40.

[86]     AB 40-41.

[87]AB 27.

[88]AB 17.

[89]     Debbie Stone (two letters), Kirsty Stone, Margaret Finlay.

[90]Outline of submissions on behalf of the appellant, para [10].

[91]AB 41.

[92]     AB 36.

[93]     AB 41.

[94]     AB 30-38; 41.

[95]     AB 35.

[96]AB 34-35.

[97]     AB 15.

[98]     AB 15, 31-38.

[99]     AB 35.

[100]AB 42.

[101] (2015) 35 NTLR 186.

[102]AB 42.

[103]AB 20.

[104]AB 43.

[105]Daniels v The Queen [2007] NTCCA 9; 20 NTLR 147 at [20] per Martin (BR) CJ and Riley J.

[106]Truong v The Queen (2015) 35 NTLR 186 at [34]-[36]; R v Indrikson [2014] NTCCA 10 at [25]; Clarke v R [2009] NTCCA 5 at [46]; R v Carey [1998] 4 VR 13 at 17 per Winneke P; R v Koumis [2008] VSCA 84; 184 A Crim R 421.

[107]AB 43.

[108]   Truong v The Queen (2015) 35 NTLR 186 at [29].

[109]R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44.

[110](2001) 207 CLR 584 at [67]-[70].

[111]R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 at [34].

[112]R v Speechley [2002] NSWCCA 300; 133 A Crim R 26 at [20]; R v Day (1998) 100 A Crim R 275 at 277.

[113] (2001) 207 CLR 84.

[114]   Wong v The Queen (2001) 207 CLR 84 at [75] per Gaudron, Gummow and Hayne JJ.

[115]   Transcript of proceedings, 7 April 2017, p 7.

[116]   Transcript of proceedings, 7 April 2017, p 6-8.

[117]   AB 17.

[118] (2015) 35 NTLR 186 at [36].

[119]See also R v Indrikson [2014] NTCCA 10 at [25].

[120]Eg. R v Carlo Betti (SCC 21415888, 21415892, 21453401, 21447486, Sentencing Remarks, 15 September 2015); R v Darryl Paul Milton (SCC 21429803, Sentencing Remarks, 8 January 2015); R v Mark Simpson (SCC 21415690, 21415731 and 21447489, Sentencing Remarks, 27 May 2015).

[121] (2001) 207 CLR 584.

[122] [1999] NSWCCA 420; 48 NSWLR 340.

[123][2007] NSWCCA 234.

[124]R v Lee [2007] NSWCCA 234 at [23].

[125]R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [110] per Howie J.

[126]See R v Bezan (2004) 147 A Crim R 430 at [34] per Wood CJ at CL, Buddin and Shaw JJ agreeing.

[127](2008) 184 A Crim R 421.

[128] (2008) 184 A Crim R 421 at [3].

[129]AB 42.

[130](2008) 184 A Crim R 421 at [53] per Redich and Kellan JJA, and Osborn AJA.

[131]R v Koumis (2008) 184 A Crim R 421 at [54].

[132]R v Koumis (2008) 184 A Crim R 421 at [58], citing Everett v The Queen [1994] HCA 49; 181 CLR 295 at 305, 307 per McHugh J.

[133]R v Koumis (2008) 184 A Crim R 421 at [51] per Redlich and Kellan JJA, and Osborn AJA.

[134]Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40].

[135]Wong v The Queen (2001) 207 CLR 584 at [6] per Gleeson CJ.

[136][2016] NTCCA 4.

[137][2016] NTCCA 4 at [42]-[45].

[138][2016] HCA 48; (2016) 339 ALR 229.

[139]R v Kilic (2016) 339 ALR 229 at [21], with reference to s 1(a) of the Sentencing Act 1991 (Vic).

[140] (2016) 339 ALR 229 at [22]; citing Kilic v The Queen [2015] VSCA 331 at [48] and making reference to Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129 at [30]-[31] per Nettle JA (Ashley and Redlich JJA agreeing at [71]-[72]).

[141](2016) 339 ALR 229 at [19].

[142](SCC 21429803, Sentencing Remarks, 8 January 2015).

[143](SCC 21415690, 21415731, 21447489, Sentencing Remarks, 27 May 2015).

[144](SCC 21415888, 21415892, 21453401, 21447486, Sentencing Remarks, 15 September 2015).

[145]   (SCC 21607820, Sentencing Remarks, 16 June 2016).

[146](2015) 35 NTLR 186.

[147](SCC 21456284, Sentencing Remarks, 12 October 2015).

[148]   (SCC 21546121, Sentencing Remarks, 19 April 2016).

[149](SCC 21532746, Sentencing Remarks, 14 March 2016).

[150]   (SCC 21547368, Sentencing Remarks, 12 February 2016).

[151](SCC 21524915, Sentencing Remarks, 15 January 2016).

[152](SCC 21524916, Sentencing Remarks, 8 January 2016).

[153]   (SCC 21502840, Sentencing Remarks, 13 August 2015).

[154](SCC 21415715, Sentencing Remarks, 31 March 2015).

[155]   (SCC 21456234, Sentencing Remarks, 27 May 2015).

[156]   Sentencing Act (NT) s 40(1).

[157](2015) 35 NTLR 186.

[158]AB 19.

[159]AB 18-19.

[160](1992) 2 NTLR 183.

[161]R v Minor (1992) 2 NTLR 183 at 186.

[162] [2010] NTCCA 16.

[163]Outline of submissions on behalf of the appellant at 10, 14 and 15.

[164] [2013] HCA 37; 249 CLR 571 at [24] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

Most Recent Citation
Cases Citing This Decision

7

Cumberland v The Queen [2020] HCA 21
Cumberland v The Queen [2020] HCATrans 49
Russell v The Queen [2022] NTCCA 6
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