Walton v The Queen

[2018] NTCCA 15

CITATION:Walton v The Queen [2018] NTCCA 15

PARTIES:WALTON, Erin

v

THE QUEEN

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

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA7/18 (21630019)

DELIVERED:  3 October 2018

HEARING DATE:  6 September 2018

JUDGMENT OF:  Grant CJ, Southwood and Blokland JJ

CATCHWORDS:

CRIMINAL LAW – APPEAL – SENTENCING

Aggregate sentence – not authorised by the Sentencing Act – specific error – appeal allowed – appellant re-sentenced.

Sentencing Act s 52(1)

Tomlins v The Queen [2013] NTCCA; The Queen v Rudd (2015) 34 NTLR 131, applied.

REPRESENTATION:

Counsel:

Appellant:I Read SC

Respondent:  D Morters

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  15

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

Walton v The Queen [2018] NTCCA 15

No. 21630019

BETWEEN:

ERIN WALTON

Appellant

AND:

THE QUEEN

Respondent

CORAM:     GRANT CJ, SOUTHWOOD and BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 3 October 2018)

THE COURT:

Introduction

1. On the 24 November 2017 the appellant was sentenced for offences against the Misuse of Drugs Act. The sentencing judge imposed an aggregate term of five years and two months imprisonment, with a non-parole period of two years and seven months. The sentence was ordered to commence on 1 July 2017. The aggregate term of imprisonment was imposed across one count on indictment and two charges on complaint which were transmitted from the Local Court to the Supreme Court.

2. Although the appellant initially sought to rely on four grounds of appeal, leave was granted to allow the following additional ground of appeal:

   The learned sentencing judge erred in law by imposing an aggregate sentence for offences not joined on the same indictment.

3. Counsel for the respondent conceded error was made out on the basis of this ground. Further, as a result of the error the respondent agreed the appellant was entitled to be re-sentenced. The concessions were properly made.

4. Section 52(1) of the Sentencing Act provides:

   Where an offender is found guilty of two or more offences joined in the same information complaint or indictment, the court may impose one term of imprisonment in respect to both or all of the offences but the term of imprisonment must not exceed the maximum term of imprisonment that could be imposed if a separate term were imposed in respect of each offence.

5. As the aggregate sentence passed was not in accordance with s 52(1) of the Sentencing Act, and specific error has been shown which enlivens this Court’s power to re-sentence the appellant according to law.[1]

6. As the appellant is to be re-sentenced, the Court heard sentencing submissions from both counsel on 6 September 2018. Two grounds of appeal were abandoned at the outset.[2] In the circumstances there is no necessity to deal with the remaining grounds.

7. Prior to re-sentencing the appellant, an assessment for suitability for general supervision under s 103 of the Sentencing Act was ordered, including an assessment for the appellant’s suitability for the COMMIT programme. The Court also ordered an assessment of the appellant’s suitability for the Banyan House residential rehabilitation programme.

   Entry of the pleas of guilty and particulars of the charges

8. On 8 August 2017 the appellant pleaded guilty to a single count on an indictment dated 8 August 2017. The count charged that contrary to s 5(1) & (2)(a)(ii) of the Misuse of Drugs Act between 4 March and 28 May 2016 in Darwin she unlawfully took part in the supply of methamphetamine to another person. The maximum penalty for this offence was imprisonment for 14 years.

9. As at 8 August 2017, s 5(1) & (2)(a)(ii) of the Misuse of Drugs Act dealt with a quantity of the dangerous drug specified in Schedule 1 of the Misuse of Drugs Act that is not a commercial quantity. A commercial quantity of the dangerous drug is 40g.

10. In addition, on 23 November 2017 the appellant pleaded guilty to 2 counts on complaint. The first count on complaint charged that contrary to s 13 of the Misuse of Drugs Act on 27 May 2016 at Palmerston the appellant administered a dangerous drug, namely methamphetamine, to herself. The maximum penalty for this offence is 17 penalty units or imprisonment for two years. The second count on complainant charged that contrary to s 12(1) of the Misuse of Drugs Act on 2 June 2016 the appellant unlawfully possessed a glass ice pipe for use in the administration of a dangerous drug. The maximum penalty for this offence was17 penalty units or imprisonment for two years.

    The sentencing facts

11. In 2016 the appellant commenced a relationship with Lindsay Bunn and by May 2016 had moved into a residence with him. Both the appellant and Mr Bunn knew Robert Chin.

12. In November 2015 detectives from a joint organised crime task force called “Nemesis” commenced an operation called “Kliger” to investigate the supply of methamphetamine in the greater Darwin region.

13. Robert Chin was identified as one of the main drug suppliers in a distribution network operating in the region. Between 4 March and 27 May 2016 his mobile telephone was covertly monitored. A total of 709 communication sessions comprising both telephone calls and SMS messages were identified by the police as having evidentiary significance, including 142 sessions involving communications between Robert Chin and the appellant. Other sessions of evidentiary significance involved communications between Robert Chin and a number of other persons referred to in communications between Robert Chin and the appellant.

14. On 27 May 2016 Robert Chin was arrested and charged with supplying a commercial quantity of methamphetamine between 23 November 2015 and 26 May 2016.

15. Between 4 March and 28 May 2016 the appellant engaged in 27 instances of supply of methamphetamine. In view of the charge to which the offender has pleaded guilty it may be inferred that the quantity of methamphetamine supplied by the appellant over that period was less than 40 g. The evidence revealing all but one of the instances of supply is comprised of telephone communications with Robert Chin. The telephone communications show that the appellant was engaged in the sourcing and supply of methamphetamine both for the purpose of obtaining a financial benefit and for the purpose of obtaining amounts of the dangerous drug for her own use.

16. On the early morning of 27 May 2016, the last instance of supply by the appellant was filmed by Robert Chin on his mobile telephone at the appellant’s residence. Robert Chin, the appellant, Lindsay Bunn, and Angelina Cubillo were at the residence. The film shows Ms Cubillo and the appellant packaging methamphetamine at the kitchen bench, and the audio includes Ms Cubillo asking the appellant about an amount “for her”. It also shows the appellant blowing smoke into the face of a woman wearing a snorkelling mask. The appellant is seen using an item that was fashioned by attaching the glass bowl of the methamphetamine pipe to a bong.

17. On 26 June 2016 police searched the offender’s residence at Zuccoli. They found and seized a clip seal bag that contained 2.46 g of methamphetamine, methamphetamine in a handbag belonging to another person present at the house, methamphetamine in an egg container in the refrigerator, and a small plastic tub in the kitchen containing used ice pipe bowls. Fingerprints of Lindsay Bunn and Ms Cubillo were found on the small plastic tub.

18. On 29 June 2016, Detective Senior Constable Alicia Harvey conducted an interview with the appellant which was electronically recorded. Initially, the appellant denied speaking to Robert Chin about drugs on the telephone.  The appellant was then shown the mobile telephone footage taken on 27 May 2016 and asked, “What were you doing there?” The appellant replied: “Well it is me smoking a bong. I see Angelina Cubillo there doing whatever she is doing. I was putting something in a packet you know I got the thing off her and pushing it into my pipe…”

19. The appellant was also asked by police about some photographs of a used methamphetamine pipe bowl which police found at her residence in the plastic tub. The appellant said the item was a “bowl broken pipe”. She was asked what she used the pipe for and she responded, “Crack, they have been there for a long time”.

    Assessment of the gravity of the offending

20. While every supply of methamphetamine is a serious offence because the drug is such an insidious and dangerous drug, the offence committed by the appellant is towards the lower end of the range of such offences. Over a period of about 3 months the appellant supplied a relatively small quantity of methamphetamine through her engagement with a person who was a much larger drug supplier. By and large, she did so in order to maintain her addiction to the dangerous drug. Although by its nature this is serious offending, the appellant’s offending is to be distinguished from offenders who are dealt with for generically more serious offences involving the supply of commercial quantities of methamphetamine. Nevertheless, both general and specific deterrence significantly inform the sentence.

    Subjective circumstances of the appellant

21. The offender was born in Perth on 19 March 1982. She is 36 years of age. She was 34 years of age at the time she committed the offence of supplying methamphetamine. She was raised in Carnarvon until she was eight years of age. Her family then moved back to Perth.

22. In June 1990 her mother was diagnosed with breast cancer. While she received treatment, it was necessary for her to be away from the appellant and her siblings for an extended period of time. During that time the appellant suffered physical abuse at the hands of her aunt who had the care of the appellant and her brother. Shortly after her mother completed her treatment the appellant was diagnosed with separation anxiety and obsessive-compulsive disorder.

23. The appellant attended Newman College in Perth and completed year 11. She left school part way through year 12. The appellant was good at sport and athletics.

24. During year 12 of school the appellant started using cannabis. She was 16 years of age at the time. The appellant started using methamphetamine socially in or about 2004.

25. In 2005 the appellant moved to Darwin ostensibly to better engage with her father who had separated from her mother. In 2008 while in Darwin the appellant met her ex-husband, Todd Walton, who she married in 2013. The marriage was short-lived, and ended in December 2014 when the appellant discovered her husband was having an affair.

26. The appellant told the forensic psychologist who prepared a report for the Supreme Court that she and her husband, Todd Walton, were planning on having a baby but she was unable to become pregnant. After many tests and much stress, she was diagnosed with severe endometriosis and it was necessary for her to undergo an operation. After that she was advised that it would be difficult for her to conceive. The appellant was told it may be necessary to consider IVF. After this her husband made her feel as if she was broken and intimacy between them became very difficult. It was then revealed to her that her husband had been exchanging sexually explicit material and conducting an online relationship with an ex-girlfriend.

27. After she separated from her husband the appellant had a brief relationship with a man who she described as psychotic and crazy and who she said attacked her. She also said that when she withdrew from the relationship he began to stalk her.

28. After the breakup of her marriage, the appellant attempted to take her life on three occasions. She received counselling and was prescribed medication for her mental state. However, she could not cope with the side effects of the medication and again reverted to methamphetamine use.

29. Following the breakup of her marriage, the appellant’s drug use also increased in an attempt to self-medicate for depression. At the same time, the appellant increased her socialisation with acquaintances and friends who engaged in criminal activity.

30. The appellant began training as a hairdresser when she was 16 years of age and completed her apprenticeship when she was 19 years of age. In 2002 she began a 3 ½ year tenure with a surfboard distribution company in Perth. After moving to Darwin in 2005 she began working at a hair salon and remained there in a full-time role until 2010. She then began working at Centrelink where she remained until 2015 when her position was terminated as a result of her conviction for an assault upon her ex-husband.

31. The offender has a criminal record. At the time she was sentenced she had been found guilty of an aggravated assault, which was dealt with without conviction and the imposition of a good behaviour bond, and she had been convicted of engaging in conduct that contravened a domestic violence order, for which she was again given a good behaviour bond. It also seems that at the time she was sentenced in the Supreme Court she had been charged with committing further drug-related offences which were said to have been committed on 4 January and 5 October 2017 while she was on bail.

32. While the offender was on bail she returned two positive urinalysis results for the consumption of dangerous drugs, failed to provide a sufficient sample for drug testing on a number of occasions, produced a sample of urine which recorded temperature failure, only submitted one suitable sample jar, not two, on two occasions, failed to charge her electronic monitoring device, failed to meet her reporting requirements, and breached her bail undertaking by relocating to a residential address different to that listed in the bail order. The offender was also resistant to engaging in a residential rehabilitation program and was found unsuitable for a day program due to her lack of motivation and denial of substance misuse.

33. The forensic psychologist who examined the appellant and provided a report to the court stated that at the time she interviewed the appellant she presented as emotionally unstable and vulnerable. She demonstrated variability in control of her thought processes within interview and differing presentations between interviews. Discussion of her history was difficult for her and represented a reminder of her losses, an inability to effectively deal with problems and a lack of control over her life and her future.

34. The forensic psychologist stated the appellant would find it difficult to remain abstinent from substance use – and especially so if she continued to associate with current peers, did not participate in extended residential rehabilitation, did not develop pro-social support networks and did not engage in employment. At the time of the interview the appellant’s expressed desire to participate in residential rehabilitation was low. It was the psychologist’s opinion that this view would be likely to persist until the appellant developed insight into the negative effects substance misuse has had on all aspects of her life and functioning. As long as the appellant persisted in her belief that others were to blame for her offending and predicament, and that her substance use was functional, the necessary insight was unlikely to be gained. It was probable that the appellant would find residential rehabilitation difficult without such insight and the risk of decompensation and disengagement due to program demands was not insignificant.

35. The forensic psychologist further stated that the appellant's current mental health was precarious and diagnostically complex. It was clear that she suffered from a continuing stimulant use disorder of varying severity for over a decade. The appellant was also likely to suffer from clinically significant personality dysfunction, however the range of reported symptoms made it difficult to make a specific diagnosis. The appellant remained susceptible to poor mental health and substance misuse.

36. The single constant in her life has been that of dependency on drugs, specifically amphetamine to regulate her affect. The appellant reported consistent ice use for over 10 years to combat boredom, loneliness and isolation. More recently, over the last three-four years, her ice use increased in response to emotional distress and due to a failure to adopt alternative stress reduction and self-soothing techniques. The only connection between the appellant’s mental health problems and her offending that was currently apparent was her addiction to methamphetamine.

37. The appellant’s background is complex. She has not previously had the benefit of a residential rehabilitation programme, or any other form of structured rehabilitation for her substance misuse problem.  The appellant has been in custody for over one year and has been assessed as suitable for residential rehabilitation in the Banyan house programme, and for the COMMIT programme. Her prospects of rehabilitation are largely unexplored, but will be enhanced if she is monitored, supervised and completes the Banyan House residential rehabilitation programme. In our view, Banyan House is the most appropriate programme given her significant history of drug dependency.  Assuming the appellant successfully completes that residential programme, the COMMIT programme will thereafter provide a strict regime of supervision, enforceable by sanctions which will assist the appellant’s rehabilitation and will in turn be of benefit to the community. The conditions of COMMIT supervision have been explained to the appellant who has agreed to be subject to the conditions.[3]

    Orders and Re-Sentencing

38. The appeal is allowed. The sentence imposed on 24 November 2017 is quashed. By way of re-sentencing the appellant is sentenced to three years imprisonment commencing on 1 July 2017 for the count on indictment.

39. The balance of the sentence is suspended from 3 October 2018, on the following conditions:

    1.   The offender is to be under the supervision of a probation and parole officer for one year and nine months and must: (a) obey all reasonable directions of a probation and parole officer including directions as to reporting, residence and employment; and (b) must report to her probation and parole officer within two clear working days after the order comes into force;

    2.   The offender must tell a probation and parole officer of any change of address or employment within 2 clear working days after the change;

    3.The offender must not leave the Territory except with the permission of a Probation and parole officer;

    4.The offender must appear before the Court if directed by a probation and parole officer;

    5.   The offender shall immediately enter and complete Banyan House Residential Rehabilitation Program, participate fully in that program and do nothing to cause her early discharge;

    6.   After the offender has completed the Banyan House Program and at any stage during the remainder of her supervision, the offender shall undertake any assessment for rehabilitation and/or counselling she is direct to undertake by her probation and parole officer, and if assessed as suitable she shall undertake and complete any rehabilitation and counselling program she is directed to undertake by her probation and parole officer. The purpose of this condition is to enable the offender to undertake any further rehabilitation or counselling her probation and parole officer considers appropriate;

    7.   The offender will not consume a dangerous drug, and will submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of dangerous drugs;

    8.   The offender will not contact or associate with any person that she is directed not to contact or associate with by her probation and parole officer;

    9.All drug test samples produced by the offender must meet all of the requirements and criteria of the drug test;

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

    11.The offender must wear or have attached an approved monitoring device for the duration of the Order, and allow the placing, or installation in, and retrieval from, the premises or place specified in the order of such machine, equipment or device necessary for the efficient operation of the monitoring device; and

    12.The offender shall comply with the electronic monitoring rules, as stipulated in the Rules for Electronic Monitoring document.

1. The operational period is set at two years from 3 October 2018, during which the appellant is not to commit an offence punishable by imprisonment or she may be liable to serve the portion of the sentence held in suspense.

2. For the charge on complaint of administering a dangerous drug, namely methamphetamine to herself, the appellant is sentenced to three months imprisonment, to commence on 1 July 2017.

3. For the charge on complaint of possess a glass ice pipe for use in the administration of a dangerous drug, the appellant is sentenced to three months imprisonment, to commence on 1 July 2017.

   --------------------------------

[1]    Tomlins v The Queen [2013] NTCCA 18; R v Rudd (2015) 34 NTLR 131.

[2] Outline of submissions and behalf of the appellant at [1].

[3] Assessment of Offender Suitability for Supervision, s 103 Sentencing Act, 14 September 2018.