Tsakmakis v Kendrick - [2002] NTSC 3

Tsakmakis v Kendrick [2002] NTSC 3
PARTIES:TSAKMAKIS, Nicholas
v

KENDRICK, Susan Louise

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 48 of 2001
DELIVERED:  10 January 2002
HEARING DATES:  1 November 2002
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
APPEAL
Justices – appeal against sentence – whether sentence manifestly excessive – administering a dangerous drug – whether magistrate erred in finding he had to impose a sentence of actual imprisonment – whether there were particular circumstances of the offence.
Justices Act 1928 (NT)
Misuse of Drugs Act 1990 (NT), s 37(2), s 37(3)
Duthie v Smith (1992) 83 NTR 21, followed.
Pryce v Trenerry (1995) 78 A Crim R 561, followed.

REPRESENTATION:
Counsel:
Appellant:M Johnson
Respondent:  S Gearin
Solicitors:
Appellant:NTLAC
Respondent:  DPP
Judgment category classification:      C
Judgment ID Number:  mar0201
Number of pages:  8

Mar0201
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Tsakmakis v Kendrick [2002] NTSC 3
No. 48 of 2001

BETWEEN:
NICHOLAS TSAKMAKIS

Appellant
AND:
SUSAN LOUISE KENDRICK

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 10 January 2002)

Appeal against sentence. The appellant was convicted before the Court of Summary Jurisdiction on 8 August 2001 of administering a dangerous drug to himself and of stealing. Both offences were committed on 10 May 2001. He was sentenced to imprisonment for one month on the charge of administering a drug to himself and imprisonment for seven days for stealing. It was ordered that the sentences commence from the date upon which they were imposed and that they be served concurrently.

The appeal goes only to the sentence imposed in respect of the drug offence. It is said that the learned Magistrate erred in finding that he had to impose a sentence of actual imprisonment bearing in mind the provisions of s 37(2) and s 37(3) of the Misuse of Drugs Act 1990 (NT), and that the sentence imposed was manifestly excessive.
To properly appreciate the appellant’s grievance it is necessary to go back a step. On 20 September 2000 he committed an offence of stealing whilst under the influence of drugs. On 9 April 2001 he committed three offences described in the record of prior convictions as being interference with a motor vehicle, unlawful damage to property and unlawfully possessing property. At the time of committing those offences he was also under the influence of drugs. All of those matters came before the same Magistrate in the Court of Summary Jurisdiction in Darwin on 20 June 2001, that is, those offences were all committed before, but were dealt with shortly after the date of the present offences. The appellant was then sentenced to an aggregate of six months imprisonment to commence from 20 June, but to be suspended after two months, that is, on 19 August.
The appellant was in custody in relation to the earlier convictions and sentence at the time he was dealt with for the present matters. The concurrent sentences imposed on 8 August, dating from the date upon which they were imposed, ran concurrently to the extent of eleven days with the earlier sentences. The term of actual imprisonment for the sentences imposed on 8 August, then, amounted to about 19 days.
The facts going to the present offences are that on 10 May the appellant was found in the Smith Street mall and spoken to by police due to his apparent intoxication. During the conversation the appellant admitted having injected morphine sulphate that day, the drug having been illegally purchased. When searched, the police also discovered a bottle of cleaning solution and an audio lead valued in all at $13 in his trousers pocket. It appears that those goods were taken from a shop, and the then mandatory sentencing provisions were not held to apply to him.
However, the drug offence was regarded as being a second or subsequent offence against a provision of law of a State which, in the opinion of the Court, was the equivalent of or a similar offence to an offence against the provision of the Misuse of Drugs Act. I note from the appellant’s record of convictions, which was before the Court of Summary Jurisdiction, that he had been convicted in that State of drug offences, including possessing cannabis, possessing heroin, using cannabis, possessing a drug of dependence and using a drug of dependence (the drug was not identified). The offence committed on 10 May, to which the appellant pleaded guilty, was for administering the dangerous drug to himself. It was not contested that he fell within the provisions of s 37(2) and s 37(3) of the Misuse of Drugs Act such that although the maximum penalty for the offence was a fine of $2,000 or imprisonment for two years, the Court of Summary Jurisdiction was obliged to impose a sentence requiring him to serve a term of actual imprisonment of not less than 28 days unless, having regard to the particular circumstances of the offence or the offender, the Court was of the opinion that such a penalty should not be imposed.
Although his Worship purported to apply the provisions of s 37(2) and s 37(3), he did not impose a sentence requiring the appellant to serve a period of actual imprisonment of not less than 28 days. The respondent does not seek to have the penalty adjusted to take into account the Court’s intention to so deal with the appellant. I must therefore approach the matter upon the basis of the effective term of actual imprisonment which the appellant was obliged to serve as opposed to that which might have been imposed had his Worship proceeded strictly in accordance with the Act.
The argument on appeal on behalf of the appellant ran along the following lines. These offences had been committed prior to the Court sentencing the appellant for the earlier offences on 20 June. Since the fact of the appellant’s drug addiction was a matter before the Court in June and taken into account when sentence was then imposed, it would likewise have been considered relevant to the present offences. It would thus be unlikely, the submission proceeded, that the sentence of six months, suspended after two months, would have been any different had these matters been dealt with then.
There was then before the Court a report from Territory Health Services showing that the appellant was referred to the Alcohol and Other Drug Services Agency on 9 January 2001, considered suitable for the opiate withdrawal management programme, and commenced methadone treatment on 21 February. He had been on a reducing regime of medication since 31 May, and would continue to reduce at a regular rate until such time as the programme was terminated. That was expected to be a further few months after the date of the report, 13 June. The appellant had not attended counselling which had been offered, but had attended all his scheduled medical reviews. No predictions could be made as to his subsequent behaviour, and it was noted that if he was then sentenced to prison and not able to continue with the reduction regime of methadone, he would suffer from considerable withdrawal symptoms.
A report under s 103 of the Sentencing Act 1995 (NT) provided to the Court in June indicated that the appellant had reported his drug abuse and indicated he was prepared to undergo counselling and treatment should such a condition be imposed by the Court. It was in the light of that information that the Court in June imposed the sentence referred to, coupled with conditions that he be supervised during an operative period of 12 months. Included in the order were conditions that the appellant obey reasonable directions regarding attendance at drug and alcohol treatment and counselling and do nothing to cause his discharge therefrom; that the appellant obey the reasonable directions of the Director of Correctional Services including submission to blood and/or urine sampling as required.
It was urged upon his Worship on 8 August that had the present matters come before him at the same time as these matters were dealt with in June it would be unlikely that any greater penalty would have been imposed then, and thus to impose a sentence in respect of these matters which would require the appellant to undergo a term of imprisonment extending beyond that which he was then serving, would be unjust. His Worship was reminded that after the appellant’s release date, he was to remain under supervision for 12 months and obey orders as to drug rehabilitation. Failing that, he could be called upon to serve the balance of the four months sentence which had been suspended.
Bearing in mind the view his Worship took as to the application of s 37(2) of the Misuse of Drugs Act, when the appellant was before him on 8 August, I do not think it is reasonable to speculate as to what his Worship would have done in June had the matters then been before him. His Worship indicated that the drug offence was a concern and I consider he rightly rejected the submission. The appellant stood to be sentenced on 8 August on the basis of the matters then before the Court taking into account all relevant circumstances including the totality principle when regard was had to the sentences previously imposed, but, of course, paying particular regard to the provisions of s 37(2).
As already indicated, the appellant had a significant record elsewhere in relation to drug addiction. It was accompanied by a long record of other offending, including for violence, dishonesty and motor vehicle related matters. At the time he was dealt with in the Northern Territory in August he was 33 years of age. He had come to the Territory, it was said, to start life anew, but he had failed in his desire to avoid drugs, leading to the offending for which he was dealt with in June. It will have been noted that although he had been under withdrawal management since January 2001 he administered the dangerous drug on himself on 10 May.
In Duthie v Smith (1992) 83 NTR 21 Mildren J reviewed the various opinions of single Judges of this Court in relation to the application of s 37(2). His Honour agreed with the view previously expressed by Justice Kearney that a narrow view of the subsection would give to the expression “particular circumstances” the meaning of “exceptional circumstances” which was not to be regarded as intended by the Parliament, and agreed with the view of Justice Angel in Maynard v O’Brien (1991) 78 NTR 16, that the circumstances must be, “sufficiently noteworthy or out of the ordinary, relative to the proscribed conduct constituting the offence, or of the offender, to warrant a non custodial sentence”. However, Justice Mildren did not consider that the circumstances needed to be so noteworthy or out of the ordinary as to convey the meaning that only in rare cases were there to be found circumstances which fell within that class. Justice Kearney endorsed that view in Pryce v Trennery (1995) 78 A Crim R 561 at p 566. With respect, I see no reason to depart from those opinions.
I consider his Worship was correct not to have found that there were any particular circumstances of the offence in this case. Indeed, nothing was put on behalf of the appellant before his Worship going to the point. The relevant circumstances of the offender have already been detailed in the course of these reasons. Although it may have in some respects been unfortunate that he was not dealt with on the first occasion for all of the offending for which he was sentenced on the separate occasions, I am not persuaded that those particular circumstances relating to him warrant departure from the requirements of the statute.
As I have already indicated, it could not be said in hindsight that had he been dealt with for all offences at the one time the provisions of s 37(2) and s 37(3) would not have been applied to him. That the offender was addicted to drugs does not, I consider, bring him within the ameliorating provisions.
That this offence carries with it a relatively low maximum penalty when compared with other offences constituted under the Misuse of Drugs Act does not assist the appellant. The provision of the statute does not discriminate between the relative seriousness of different offences. What is to be examined is the circumstances of the offence against the elements of the offence for which he stood to be sentenced.
Given that no grounds were made out to avoid the consequences of s 37(2) of the Act, and given that the sentence imposed in that regard was only two or three days in excess of the minimum, I do not consider that the sentence was manifestly excessive.
The appeal is dismissed.
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