Whitlock v The Queen

[2018] NTCCA 7

CITATION:Whitlock v The Queen [2018] NTCCA 7

PARTIES:WHITLOCK, Brenton

v

THE QUEEN

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

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

FILE NO:CA 10 of 2016 (21555741 & 21562751)

DELIVERED:  22 March 2018

HEARING DATE:  5 May 2017

JUDGMENT OF:  Grant CJ, Southwood and Kelly JJ

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT

Whether sentence manifestly excessive having regard to the circumstances of the offending and the appellant – any contention that sentencing court accorded inadequate or excessive weight to a factor properly viewed as a particular of assertion of manifest excess – review of the sentences imposed in comparable cases did not demonstrate manifest excess – the reduction of 20 percent did not suggest a failure to extend leniency in the circumstances of this case – appeal dismissed.

Misuse of Drugs Act (NT) s 5, s 9.

Sentencing Act (NT) s 5.

Alvares v R; Farache v R (2011) 209 A Crim R 297, Barav The Queen [2016] NTCCA 5, Blyss v The Queen [2011] NTCCA 3, Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145, Director of Public Prosecutions (DPP) (Vic) v Terrick; DPP v Marks; DPP v Stewart (2009) 24 VR 457, Emitja v The Queen [2016] NTCCA 4, Filippou v The Queen (2015) 89 ALJR 776, FS v The Queen [2009] NSWCCA 301, Islam v R [2016] NSWCCA 233, Leach v The Queen (2007) 230 CLR 1, Lewins v R (2007) 175 A Crim R 40, Morrow v The Queen [2013] NTCCA 7, Mun v R [2015] NSWCCA 234, Noakes v The Queen [2015] NTCCA 7, Nona v The Queen (2012) 31 NTLR 84, R v Bezan (2004) 147 A Crim R 430, R v Ellis (1986) 6 NSWLR 603, R v Gallagher (1991) 23 NSWLR 220, R v GLB [2003] NSWCCA 210, R v Lee [2007] NSWCCA 234, R v Nguyen (2005) 157 A Crim R 80, Raad v R [2011] NSWCCA 138, Ryan v The Queen (2001) 206 CLR 267, S v The Queen (2008) 186 A Crim R 505, The Queen v Indrikson [2014] NTCCA 10, The Queen v Olbrich (1999) 199 CLR 270, Truong v The Queen [2015] NTCCA 5, Wong v The Queen (2001) 207 CLR 584, Wright v The Queen (2007) 19 NTLR 123, referred to.

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

REPRESENTATION:

Counsel:

Appellant:S Cox QC and F Kepert

Respondent:  WJ Karczewski QC, Director of Public Prosecutions, and R Micairan

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:   B

Number of pages:  31

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

Whitlock v The Queen [2018] NTCCA 7

No. CA 10 of 2016 (21555741 & 21562751)

BETWEEN:

BRENTON WHITLOCK

Appellant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, SOUTHWOOD and KELLY JJ

REASONS FOR JUDGMENT

(Delivered 22 March 2018)

THE COURT:

1. On 12 September 2016 the appellant pleaded guilty to the following offences:

   (a)that between 1 March 2015 and 31 March 2015 at Alice Springs he unlawfully supplied a commercial quantity (2,270 g) of cannabis to another person contrary to s 5(1) and (2)(b)(iii) of the Misuse of Drugs Act (NT);

   (b)that between 1 April 2015 and 10 November 2015 at Tennant Creek he unlawfully supplied a commercial quantity (16,315 g) of cannabis to another person contrary to s 5(1) and (2)(b)(iii) of the Misuse of Drugs Act; and

   (c)that on 11 November 2015 at Tennant Creek he unlawfully possessed a commercial quantity of cannabis (4,069 g) contrary to s 9(1) and (2)(d) of the Misuse of Drugs Act.

2. The maximum penalty for each of those offences was imprisonment for 14 years.  The appellant was convicted of those offences and sentenced to an aggregate period of imprisonment for seven years backdated to 11 November 2015.  A non-parole period of three years and six months was fixed.

3. The appellant appeals against the sentence imposed.  The grounds of appeal are:

   (a)that the sentence and non-parole period, in all the circumstances of the offending and the appellant, was manifestly excessive; and

   (b)that the learned sentencing judge erred in not extending leniency to the appellant for his voluntary disclosures of guilt.

   The facts and circumstances of the appellant and the offending

4. The agreed facts may be summarised in their relevant aspects as follows.

   (a)In March 2015 the appellant sourced five pounds of cannabis in South Australia and drove to Alice Springs with the intention of selling it there.  He fell ill on his arrival in Alice Springs and supplied the cannabis to an unnamed person to sell on his behalf.  That sale yielded a return of $4,000 to the appellant.

   (b)The appellant returned to South Australia and in April 2015 sourced a further three pounds of cannabis and drove to Tennant Creek with the intention of selling it there.  He sold the cannabis in Tennant Creek for $15,500.

   (c)The appellant returned to South Australia and in May 2015 sourced a further four pounds of cannabis and drove to Tennant Creek in order to sell it to the same person.  He sold the cannabis for $22,000.

   (d)The appellant returned to South Australia and in June 2015 sourced a further four pounds of cannabis and drove to Tennant Creek in order to sell it to the same person.  He sold the cannabis for $20,000.

   (e)The appellant returned to South Australia and in July 2015 sourced a further four pounds of cannabis and drove to Tennant Creek in order to sell it to the same person.  He sold the cannabis for $20,000.

   (f)The appellant returned to South Australia and in August 2015 sourced a further eight pounds of cannabis and drove to Tennant Creek in order to sell it to the same person.  He sold the cannabis for $40,000.

   (g)The appellant returned to South Australia and in September 2015 sourced a further four pounds of cannabis and drove to Tennant Creek in order to sell it to the same person.  He sold the cannabis for $20,000.

   (h)The appellant returned to South Australia and in November 2015 sourced a further nine pounds of cannabis with the intention of driving to Tennant Creek in order to sell it to the same person.  On 11 November 2015 the appellant was stopped by police approximately 20 kilometres South of Tennant Creek.  The vehicle was searched and the cannabis was found.

   (i)The appellant supplied a total of 41 pounds of cannabis in Alice Springs and Tennant Creek over the period in question.  The threshold for a commercial quantity of cannabis under the Misuse of Drugs Act is approximately one pound.  The appellant received in excess of $140,000 for the cannabis he supplied over that period.  Had he sold the nine pounds with which he was apprehended, he would have received a further $45,000.

5. The appellant participated in an electronic record of interview on 16 December 2015.  He made full admissions to the offending in which he had been engaged at the time of his apprehension, and admitted that he had been engaging in similar activity since March 2015.  He stated that he started supplying cannabis to raise money for medical treatment, but subsequently became “greedy”.  He stated that he had spent much of the money derived from that activity on gambling and prostitutes.  He did not name either his suppliers or the person to whom he supplied the cannabis.

6. The appellant’s subjective circumstances may be summarised in their relevant aspects as follows.

   (a)The appellant had been a long haul truck driver.  He had been in a relationship with his wife since the age of 15.  Together they had seven children and ten grandchildren.  He had to give up his occupation as a truck driver due to osteoarthritis.  He had separated from his wife in September 2013.  They had reconciled by November 2015, as is apparent from the fact that his wife was in the vehicle with him on 11 November 2015 when he was apprehended by police south of Tennant Creek.

   (b)The appellant had a history of prior offending, all of which was dated and none of which was of particular relevance to the subject offending.  Most significantly, he had convictions for rape and burglary committed in December 1980, for which he was imprisoned for six years and one year respectively.  He had a number of convictions for relatively minor vehicle-related offences in a number of jurisdictions between 1980 and 1999.  He had a number of early convictions for unlawful use of a motor vehicle, driving under the influence of alcohol, and minor street offences.  He also had a history of repeated juvenile offending between 1969 and 1977, commencing when he was approximately ten years of age.

   (c)As that juvenile offending might suggest, the appellant had a difficult childhood which involved intermittent confinement in juvenile institutions and some episodes of physical and sexual abuse.  The appellant had a history of alcohol and drug abuse while young, but he was able to remain abstinent from hard drugs following his release from prison on parole for the rape conviction.  The appellant resumed the use of cannabis and methamphetamine in about 2014 following the separation from his wife.

   (d)In a letter submitted for the purpose of the sentencing process, the appellant’s wife attested to the fact that the appellant had been a good and supportive husband and father, that he had supported her during her mother’s recent battle with cancer, that his incarceration had been very difficult for the family, and that one of his daughters and his mother were very ill and required his assistance.  The appellant’s eldest daughter submitted a letter to similar effect.

   (e)A medical report tendered for the purpose of the sentencing process certified that the appellant had been diagnosed with osteoarthritis of the hips and knees which was not likely to improve without surgery, and with hypertension which required the regular use of anti-hypertensive medication.

   (f)A further medical report tendered for the purpose of the sentencing process advised that in the nine months following the appellant’s incarceration his wife had suffered from depression, stress-related coronary syndrome, constipation, poor diabetes control and retinopathy.

   (g)A further medical report tendered for the purpose of the sentencing process certified that the appellant’s daughter suffered from a severe form of inflammatory arthritis, Crohn’s disease and congenital adrenal hyperplasia.

   (h)A further medical report tendered for the purpose of the sentencing process certified that the appellant’s mother suffered from a range of medical conditions, that her health had deteriorated since the appellant’s incarceration, and that the appellant had been her primary carer for a period of three years prior to that incarceration.

   Manifest excess

7. The principles which govern appeals on the ground that a sentence is manifestly excessive are well known.[1]  The presumption is that there is no error.  An appellate court interferes only if it is shown that the sentencing judge committed error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.  It is incumbent upon the appellant to show that the sentence was clearly and obviously, and not just arguably, excessive.

8. After reciting the facts, the sentencing judge summarised what might be described as the quantitative aspects of the appellant’s offending.  The appellant supplied a total of five pounds of cannabis in Alice Springs.  He then went on to supply a total amount of 36 pounds of cannabis in Tennant Creek.  Those quantities “could have yielded” approximately $25,000 in Alice Springs and approximately $184,000 in Tennant Creek, amounting to a total potential return in the order of $209,000.

9. The sentencing judge then identified the following further and salient features of the offending.  First, the appellant engaged in a significant operation which involved eight separate transactions, the concealment of the cannabis in a motor vehicle, and a 4,000 km round-trip on each occasion.  Secondly, the appellant was relatively high in the chain of supply.  He accepted orders, sourced the cannabis in South Australia, and transported it to the Northern Territory.  His engagement in the enterprise was not that of the mere mule or courier, he knew the quantity he was transporting on each occasion, and he received the proceeds of sale directly.  Thirdly, the operation was well planned and involved regular transportation over a period of seven months.  Fourthly, the offending was likely to have continued had the appellant not been apprehended by police.  Finally, the appellant’s primary motivation was greed.

10. In The Queen v Indrikson,[2] this court considered the purposes and principles which operate when sentencing of offenders for the supply of large quantities of cannabis.  The court described the objective seriousness of the offending under consideration in that matter in the following terms:

    [25]   The offence of supplying cannabis committed by the respondent is a very serious offence. The respondent deliberately chose to engage in the supply of large amounts of cannabis in the Northern Territory for commercial gain. Cross border trafficking and the supply of cannabis in the Northern Territory is prevalent. The respondent’s conduct involved the importation into the Northern Territory of a substantial amount of cannabis on two occasions. The respondent knew the quantities of cannabis he was importing into the Northern Territory. The transhipment of the 100 pounds of cannabis is the largest transhipment of the dangerous drug that has come before the Supreme Court of the Northern Territory. The respondent sold all of the 100 pounds of cannabis that he imported from Birdsville and he would have sold the cannabis he imported from South Australia if he had not been arrested. He made a considerable profit from the sale of the 100 pounds of cannabis. Both of the interstate trips were planned and the cannabis was concealed in a sophisticated manner. The respondent employed other persons to prevent the interception and detection of the importation of the 100 pounds of cannabis from Birdsville.

    [26]   The respondent was clearly a principal of a significant commercial enterprise that involved the importation and sale of large amounts of cannabis in the Northern Territory. He financed, organised and executed the importation and distribution of the cannabis in the Northern Territory and he engaged others to assist him in achieving his endeavours.

    [27]  The quantity of cannabis is an important factor to be taken into account in this case when assessing the objective seriousness of the offence because on each occasion the respondent imported cannabis into the Northern Territory he knew how much cannabis he was importing; and he made a significant amount of money from the sale of the 100 pounds of cannabis he imported and sold.[3]

11. A number of matters of similarity with and differentiation from the present offending may be noted.  The matter of Indrikson involved a total of 67 kilograms of cannabis, the first shipment of which was sold at significant profit.  A lesser amount and a lower profit was involved in the offending the subject of this appeal.  The cannabis in Indrikson was transported by the offender into the Northern Territory from interstate on two separate occasions.  The appellant in this case was involved in eight separate episodes of cross-border transportation.  The prevalence of the cross-border trafficking and supply of cannabis is equally relevant in both matters.  The methods which the offender in Indrikson adopted to avoid detection of his activity and of the drugs were relatively sophisticated.  Although the appellant’s concealment was not of the same level of sophistication, it did involve a degree of planning and intent.

12. The court in Indrikson went on to describe the circumstances and principal sentencing objectives in the following terms:

    [29]   The importation and sale of such large amounts of cannabis causes significant harm in the community. Transhipments of cannabis are prevalent. The respondent had demonstrated a capacity to recover from setbacks in his life, he had the capacity to obtain $200,000 for the purchase of the dangerous drug and as a mature and intelligent adult he deliberately chose to stop leading a law abiding life and engage in criminal conduct for commercial gain at a very high level of offending. He was aware of the harm that his misuse of dangerous drugs had caused him but he persisted in the misuse of dangerous drugs.

    [30]   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.[4]

13. Similar observations can be made in this case in relation to the harm caused by this type of offending and its prevalence; the appellant’s decision as a mature adult to engage in criminal conduct for commercial gain; the appellant’s place in the enterprise; the weight properly accorded to the appellant’s prospects of rehabilitation in sentencing for offending of this type; and the significance of general deterrence, community protection, punishment and denunciation as objectives in sentencing for offending of this type.

14. In the final result, the court in Indrikson resentenced the offender to imprisonment for eight years after allowing a 20 percent reduction for the plea of guilty, and fixed a non-parole period of four years.

15. The appellant’s principal contention in this ground of appeal is that the sentencing judge failed to give sufficient weight to a number of matters and gave excessive weight to others.  As this court has previously observed, any contention that the sentencing court has accorded inadequate or excessive weight to a factor is properly viewed as a particular of the assertion of manifest excess.[5]  Beyond any inferences which might be drawn from the ultimate determination of whether the sentence was either within or without the available range, it is neither possible nor necessary for an appeal court to reach any particular conclusion concerning the allocation of weight to a factor. 

16. The first factor to which it is said insufficient weight was given is the total quantity of the cannabis involved in the appellant’s offending.  There is no principle of sentencing which requires that offending involving a greater amount will necessarily receive a heavier sentence than offending involving a lesser amount.  That determination does not resolve to a matter of mathematical or mechanical comparison, and cannot obscure the consideration of other factors going to the objective seriousness of the offending and the subjective circumstances of the offender.  In Wong v The Queen[6] the High Court cautioned that the quantity of the drug involved cannot necessarily be treated as the primary determinant of sentence in drug trafficking cases.  That is particularly so in circumstances where the offender is unaware of the amount of the drug involved, as is often the case with couriers.[7] 

17. Subject to that caution, it remains the case that the amount of the drug involved may be a highly relevant factor in determining the objective seriousness of the offence and the harm likely to be caused to the community as a result of the offending.[8]  In accordance with those principles, this court recognised in Indrikson that the quantity of cannabis was an important factor in assessing the objective seriousness of the offending because on each occasion the offender knew how much cannabis he was importing; and because the offender made a significant amount of money from the sale of that cannabis.  

1. There is no doubt that the sentencing judge in the present case was aware of the amounts involved in the subject offending, and of the amounts involved in Indrikson.  His Honour directed himself specifically to those matters during the course of sentencing remarks in the following terms:

   In one sense that case was more serious than yours because the quantity that was brought in by Indrikson was about three times the total quantity that you brought into the Northern Territory.  Also Indrikson had taken $200,000 in cash with him to Birdsville, out of the Northern Territory, to pay for the drugs.[9]

2. That difference is no doubt reflected in part in the lesser sentence imposed on the appellant in this matter. 

3. The second factor to which it is said insufficient weight was given was the fact that the appellant would have been required to pay his supplier in South Australia from the gross proceeds he received as a result of the offending such that the amount of his profit would have been considerably less.  That is not a matter to which the sentencing judge was required to give express advertence.  The following features are relevant in that respect.  First, as the agreed facts provided and as the sentencing judge observed, the appellant brought large quantities of cannabis into the Northern Territory and sold it for up to $5,500 per pound.  Secondly, the appellant sought to maximise his profit by trafficking the drugs from South Australia into the Northern Territory.  Thirdly, that activity produced an actual gross revenue of approximately $160,000 over a period of eight months.  Fourthly, on the appellant’s own admission, his motive was greed and his aim was to make profit. 

4. While it may be accepted that “[t]he 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”,[10] there is nothing to suggest that the sentencing judge misapplied that principle. In particular, a court may consider the total value of the drug involved as an objective indicator of the gravity of the offending and is not bound to attempt some calculation of net profits for that purpose,[11] and counsel for the appellant made no attempt during the course of the sentencing proceedings to identify the amount paid by the appellant for the cannabis.

5. The third factor to which it is said insufficient weight was given was the lack of sophistication in the appellant’s enterprise.  The appellant seeks to contrast his activity in that respect with that engaged in by Indrikson.  As already observed, although the appellant’s concealment of both the cannabis and his movements did not demonstrate the same level of sophistication it did involve a degree of planning and intent.  As is apparent from the passages extracted above, the sentencing judge was alive to the distinctions between the manner of the appellant’s offending and the nature of the offending in Indrikson.

6. The appellant then asserts that insufficient weight was given to the related factors of his cooperation with police, his early plea of guilty and his remorse.  There is some overlap between this assertion and the second ground of appeal, which is that the sentencing judge fell into error by not extending leniency to the appellant for his voluntary disclosures of guilt.  The nature and significance of those disclosures is dealt with in greater detail in the context of that ground.

7. It is not entirely clear whether the appellant’s argument in this respect is that matters of assistance to authorities and remorse should have been taken into account in assessing the “starting point” for sentence before any reduction for the plea of guilty, or whether they were matters properly taken into greater account, as part of the appellant’s plea of guilty, in fixing the appropriate proportion by which that starting point should be reduced, or both.  Different approaches are taken in various Australian jurisdictions concerning the manner in which assistance to authorities is taken into account.[12]   

8. It has been suggested in some decisions that a process of intuitive synthesis, which would include a consideration of the assistance provided to law enforcement authorities, makes the determination of “starting points” and the application of a reduction inappropriate.  Other cases have held that there is no necessary conflict between the process of intuitive synthesis and the application of a “discount”.  As the New South Wales Court of Criminal Appeal observed in FS v The Queen:[13]

   There is more than one method by which an appropriate sentence can be derived and the method adopted by a sentencing judge will depend upon the circumstances of the offence and the offender. The discount for assistance has often been the catalyst for the expression of the difference of approach between intuitive synthesis and a more mathematical approach: see Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 375 [39]; AB v R (1999) HCA 46; [1999] 198 CLR 111; Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 611-612.

   It is not inconsistent with an intuitive synthesis for a sentencing judge to specify the amount of discount for the utilitarian value for a plea of guilty and the level of assistance to law enforcement authorities, and to specify, as did the sentencing judge on this occasion, the particular value of future assistance as is required under s 21E of the Act. That, of course, depends upon the proposition that the process does not become or amount to a two-stage process of the kind to which the High Court referred in Wong, supra, by which the Court assesses, for example, the “objective” sentence and then adjusts that sentence by some mathematical value for each of a number of features including perhaps the subjective elements of an offender. The Court is required to take account of a guilty plea and the degree of assistance to law enforcement agencies (s 16A(2)(g) and (h) of the Act), and these may, if granted, be deducted from the sentence that would otherwise be imposed and which is derived by intuitive synthesis.

9. We respectfully agree with that analysis, and in this jurisdiction the degree of assistance provided to law enforcement officers is ordinarily addressed as part of the same process as the deduction to take account of a guilty plea.  So far as the appellant’s assistance to authorities is concerned, the sentencing judge made particular note of the fact that the appellant had volunteered to police that he been engaging in that activity as far back as March in the year of his arrest.[14]  There is no doubt that his Honour had that matter in mind when he reduced the head sentence to take into account that matter and the plea of guilty.  For the reasons which are discussed in the context of the second ground of appeal, the fact that the sentencing judge applied a 20 percent reduction which included that consideration does not disclose any error of principle.  It also does not lead necessarily to the conclusion that the sentence imposed was excessive.

10. So far as the question of the guilty pleas and remorse is concerned, the sentencing judge made the following remarks:

    I will certainly reduce the sentence that I will be imposing on account of your guilty pleas even though pleas to two of the three charges came relatively late …

    In terms of remorse, I understand that you are naturally sorry for the trouble that you have caused your family and in particular your wife and your mother and your children.  I am not really satisfied that you understand the damage that may well have been caused to other innocent consumers who may have ended up buying the drugs you brought into the Northern Territory and I think that you need to reflect upon that.

    In any event, I do find that you have shown some degree of remorse and I will be reducing the total sentence that I would have otherwise imposed by about 20% on account of guilty pleas, admissions to the police and remorse.[15]

11. A number of well-settled principles have application to that determination.  First, any reduction in sentence to take into account a plea of guilty and remorse is a discretionary determination which has no set value and which does not require a reduction of 25 percent.[16]  Secondly, that will ordinarily be the extent of the reduction where a guilty plea is indicated at the earliest opportunity such that it may be considered both facilitative to the administration of justice and indicative of true remorse; but again that is a matter for the exercise of the discretion.[17] 

12. Against that background, the sentencing judge’s characterisation of two of the guilty pleas as “relatively late” was reflective of the fact that they were not indicated until the date on which the committal proceedings were scheduled to run, and for which notice had been given that a number of witnesses were required to give evidence.  While his Honour may by the use of that phrase have mischaracterised the timing of the plea, nothing turns on it.  The reduction applied was appropriate given his Honour’s consideration of the quality of the appellant’s remorse.  That assessment was open in the circumstances.  As the New South Wales Court of Criminal Appeal observed Islam v R (footnotes omitted):

    … assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction.  Further, it has been emphasised that  considerable caution must be exercised In determining what weight, if any,  can be placed upon self-serving and untested statements by an offender contained in a report of a health professional.

    It has been said that remorse means regret for the wrongdoing which the offender’s actions have caused because it can be safely assumed that an offender will always regret the fact of apprehension.[18]

13. The final matter to which the appellant says insufficient weight was given were his relatively good prospects for rehabilitation.  Particular attention was drawn in that respect to the fact that the appellant had rehabilitated himself following previous periods of incarceration; that the appellant had no convictions recorded between 2000 and the date of his arrest for this offending; that he had involved himself tutoring other prisoners while on remand; that he had indicated a willingness to undertake a drug rehabilitation program once sentenced; and that his family circumstances provided a strong motivation for rehabilitation.

14. That the appellant had gone some period without offending was not necessarily determinative of his prospects of rehabilitation.  As this court observed in Bara v The Queen:

    … a repetitive pattern of offending followed by a gap followed by reoffending may lead to the conclusion that an offender is not capable of long-term reform.  [Footnote: R v Kane [1974] VR 759] That is particularly so in the case of a 50-year-old offender. It does not necessarily follow that a record of persistent offending will attract a heavier sentence than a long record of offending punctuated by significant periods free of criminal conduct.[19]

15. The sentencing judge specifically acknowledged the appellant’s future plans and his willingness to undergo some form of drug rehabilitation.[20]  Those matters notwithstanding, rehabilitation carried less weight as a sentencing purpose in the circumstances of this case for the reasons already described.  In addition, the fixing of a non-parole period was clearly a matter directed in part to the appellant’s rehabilitation, and the sentencing judge fixed the minimum period available.

16. The factors to which the appellant contends excessive weight was given were the number of occasions on which the appellant transported relatively small amounts of cannabis into the Territory, and the suggestion that cannabis often ended up in the hands of people in Aboriginal communities.

17. As already described, the salient features of the crimes committed by the respondent included that for a period of eight months he was the principal in a drug trafficking business that was conducted from South Australia involving the shipment into the Northern Territory of drugs in various motor vehicles employed for that purpose.  That matter was recognised in the sentencing remarks in the following terms:

    On the other hand, your offending involved eight transactions extending over that period of seven or eight months.  Each of those transactions involved you bringing into the Northern Territory quantities of cannabis significantly higher than the commercial quantity of half a kilogram.  As distinct from Indrikson, your offending was more extensive in relation to the period of time during which occurred.[21]

18. There can be no doubt that the assessment of objective seriousness and moral culpability will be properly informed by the fact that the offender acted over a sustained period of time and multiple transactions.  There is nothing in the sentencing remarks, or in the result, which would indicate that the sentencing judge gave excessive weight to that matter.

19. During the course of the sentencing remarks, his Honour made two references to Aboriginal communities in the following terms:

    Unfortunately, particularly in the Northern Territory and in places like Tennant Creek and Alice Springs, cannabis often ends up in the hands of Aboriginal people and Aboriginal communities.  It is often the weak, poor and vulnerable people who end up buying cannabis and get addicted to it.  They use it to the detriment of their health and well-being and that of their families.[22]

    ….

    Unfortunately, as I mentioned a lot of the cannabis that you brought into the Northern Territory ended up in Tennant Creek which is an area with a large Aboriginal community.  It is most likely that a lot of that would have found its way into the unfortunate mouths of those people that I spoke to you about before.[23]

20. It is correct to say that neither the agreed facts nor the evidence established to the requisite standard[24] that the supply was to take place in an indigenous community, or that the cannabis was on-sold to Aboriginal users.  That was implicitly recognised by the sentencing judge’s observation that it was “likely” that a lot of the cannabis would have been distributed amongst the Aboriginal residents of the Tennant Creek region.  Having regard to the demographics of that region, this was a reasonable observation to make.  However, the manner in which it is addressed by the sentencing judge makes it plain enough that his Honour made the observation as a matter of context, rather than to identify a circumstance of aggravation. 

21. There was nothing said by the sentencing judge during the course of proceedings or the sentencing remarks which manifested error.  It falls then to consider whether the sentence itself was so excessive as to manifest such error.  There is a range of appropriate sentences that can be said to comprise the sentencing “standard” for this type of crime.  As this court observed in Indrikson at [33]:

    The cases referred to by the Director of Public Prosecutions in the annexure to his submissions give a sound indication of the prevailing sentencing standards and the sentence passed by the sentencing judge is significantly out of step with those standards.

22. While a sentencing standard is not a fixed range departure from which will necessarily found demonstrable error, the observation made by this court in Indrikson concerning prevailing standards remains true.  The submission by counsel for the appellant is that a review of the sentences imposed in comparable cases demonstrates that error has occurred.  That submission was based on the assertion that “very few cases have resulted in a sentence in excess of five years’ imprisonment and those few cases are clearly distinguishable”.  That submission should be rejected.  The sentence imposed in this case is concordant with that imposed in Indrikson having regard to the points of distinction.  A review of the comparative sentencing schedules provided by counsel during the course of the appeal does not demonstrate that the sentence imposed in this case was so excessive as to demonstrate error.[25]  This ground of appeal should be dismissed.

    Assistance to authorities

23. This ground of appeal is that “[t]he learned sentencing judge erred in not extending leniency to the appellant for his voluntary disclosures of guilt”. Section 5(2)(h) of the Sentencing Act (NT) requires that in sentencing an offender a court must have regard to “how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences”.

24. The principles which apply to the extension of leniency for this reason, and to appeals on this ground, are set out at length by this court in Nona v The Queen.[26]  They include the following matters:

(a)     Additional leniency may be allowed in sentencing an offender over and above that allowed for the plea of guilty where there has been a voluntary disclosure of guilt by the offender.  That leniency is properly extended “[w]here it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence”.[27]

(b)     Leniency on account of assistance provided to law enforcement authorities might be allowed by reduction of the head sentence or non-parole period, the fixing of a non-parole period where one might not otherwise have been thought appropriate given the circumstances of both the offences and the offender, or by permitting a greater degree of concurrency than might otherwise have been the case.[28]

(c)     The principle is not intended as the “statement of a rule to be quantitatively, rigidly or mechanically applied.  It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process.  How significant depends on the facts and circumstances of the case.”[29]

(d)     Although there are arguably good reasons for a sentencing court to identify the reduction in order to encourage the voluntary disclosure of guilt, there is a strongly expressed judicial view that the reduction should not be specified because the exercise of the discretion involves a complex of interrelated considerations including remorse, personal deterrence and prospects of rehabilitation which are not amenable to any attempt at separation.[30]  

(e)     The better view is that in a case in which assistance provided to authorities is one of relatively few relevant “subjective factors” it may be helpful to state the quantum of the reduction allowed for that assistance; that to do so should not interfere with the intuitive sentencing process; but that not to identify the reduction or credit for disclosure will not generally provide a ground for appeal.[31]

(f)   Although “a sentencing judge should allow some discount for a voluntary disclosure of guilt, a sentencing judge is not required, in every case in which there has been a voluntary disclosure of guilt by the offender, to allow a considerable or significant discount because of the voluntary disclosure of guilt or to say in the judge’s remarks on sentence that the judge has allowed a considerable or significant discount on this ground”.[32]

1. The court concluded in Nona[33] that because the additional leniency accorded by application of the Ellis principle had not been specified, the approach required was to ask whether, taking into account all of the relevant considerations including that matter, the sentence was manifestly excessive.  That is consistent with the approach taken in Victoria that where the amount of the reduction itself is not identifiable as a specific error so as to reopen the sentencing discretion, the ground of appeal can only be that the sentence is manifestly excessive.[34]  For the reasons already described in the context of the first ground of appeal, we have concluded that the sentence was not manifestly excessive.

1. Even if it is accepted that the assertion of a failure to extend leniency subsists as a discrete ground of appeal in the circumstances, no error is disclosed in that respect.  The sentencing judge’s indication that he would take into account the fact that the appellant made admissions to police is necessarily qualified by a number of matters.  The most significant qualification is that the assistance with which we are presently concerned is an admission to part of a course of offending by the offender.  It is not a case in which the appellant has provided information to the authorities which will assist or has assisted them to bring other offenders to justice; in which the appellant has undertaken to co-operate with law enforcement agencies in proceedings by way of giving evidence against other offenders; in which the appellant has disclosed information concerning unrelated crimes for which the offender is responsible; in which the appellant has alerted police to the fact that a crime is being planned; in which the offender has assisted police in the recovery of stolen property; or in which the offender has passed on information received from others while in custody.  

2. The assistance provided by the appellant does not have the features which attract the large reductions sometimes made in consideration of the extent to which assistance has combated criminal activity, led to the apprehension and prosecution of other offenders, and/or exposed the informant or his or her family to retribution and physical harm.  Against that background, it is necessary to consider the circumstances, nature and quality of the appellant’s admissions.

3. First, the appellant had been caught “red-handed” with the nine pounds of cannabis he was transporting on 11 November 2015.  During the record of interview conducted on that day the appellant made admissions only to the possession of that cannabis. 

4. Second, police subsequently came into possession of telecommunication intercepts of the appellant’s telephone calls with a known supplier of cannabis in South Australia, and CCTV footage of the appellant attending at a place in South Australia to collect the cannabis on 15 August 2015 – which was three months before his apprehension. 

5. Third, the appellant agreed to participate in a further record of interview with police on 16 December 2015 after he had been told that police had evidence indicating his involvement in the supply of cannabis in the Northern Territory prior to November 2015.  It was in those circumstances that the admissions were made.

6. Fourth, once police were aware of the appellant’s activity dating back to August 2015 it was highly likely that the related activity predating that time would be discovered with or without the appellant’s assistance.  This is not a case in which law enforcement authorities were unlikely to obtain sufficient evidence to charge the offender for that earlier offending conduct.  In particular, police obtained text messages from the appellant instructing the person in Tennant Creek to whom he was supplying the cannabis to deposit money into his bank accounts; records showing 51 phone calls between the appellant and that person between April and November 2015; and records showing that the appellant had booked accommodation and storage facilities in Alice Springs at various times during the course of 2015.

7. Even allowing for those matters, the sentencing judge acknowledged that if the appellant had not volunteered certain information in relation to the earlier offending he may not have been charged with some of the instances of supply which formed the composite offence charged at count 2 on the indictment.  We have already described the findings made by the sentencing judge in relation to the timing of the guilty pleas and the appellant’s remorse.  They warranted an allowance of something less than the reduction ordinarily allowed where a guilty plea is indicated at the earliest opportunity and the offender has demonstrated true remorse.  How much less was a matter which fell to the discretion of the sentencing judge, as was the leniency extended for the assistance given to authorities.  The reduction of 20 percent – almost two years – allowed by the sentencing judge does not suggest a failure to extend leniency, or adequate leniency, in the circumstances of this case.  This ground of appeal should fail.

   Disposition

8. The appeal is dismissed.

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

[1]See, for example, Barav The Queen [2016] NTCCA 5 at [75]-[76]; Emitja v The Queen [2016] NTCCA 4 at [39]-[40]; and Morrow v The Queen [2013] NTCCA 7 at [36].

[2][2014] NTCCA 10.

[3][2014] NTCCA 10.

[4] [2014] NTCCA 10.

[5] Noakes v The Queen [2015] NTCCA 7 at [15] citing Director of Public Prosecutions (DPP) (Vic) v Terrick; DPP v Marks: DPP v Stewart [2009] VSCA 220; 24 VR 457 at 459-460.

[6] (2001) 207 CLR 584.

[7]R v Lee [2007] NSWCCA 234; Truong v The Queen [2015] NTCCA 5 at [29].

[8]See, for example, R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [110]; R v Bezan (2004) 147 A Crim R 430 at [34].

[9]Appeal Book 107.

[10]A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters, 3^rd ed, 2014) at [4.160].  See also Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; 34 VR 1 at [41].

[11]Blyss v The Queen [2011] NTCCA 3 at [41].

[12]A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters, 3^rd ed, 2014) at [6.80]. 

[13]FS v The Queen [2009] NSWCCA 301 at [11]-[12] per Rothman J (Campbell JA and Howie J concurring).

[14]Appeal Book 106.

[15]Appeal Book 106.

[16]Wright v The Queen (2007) 19 NTLR 123 at [32].

[17]JKL v The Queen [2011] NTCCA 7 at [28], [31].

[18]Islam v R [2016] NSWCCA 233 at [95], citing Mun v R [2015] NSWCCA 234 at [29], [40] and Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44].

[19]Bara v The Queen [2016] NTCCA 5 at [57].

[20]Appeal Book 104.

[21]Appeal Book 107.

[22]Appeal Book 102-3.

[23]Appeal Book 103.

[24]The Queen v Olbrich (1999) 199 CLR 270 at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 at [64], [66].

[25]See in particular Gjonaj (SCC 2161 3773), Curtis (SCC 21212274), McCormick (SCC 20923110) Blyss (SCC 20820816), Hooton (SCC 20820817), Jesson (SCC 20722166) and Winstead (SCC 20425263).

[26][2012] NTCCA 3; (2012) 31 NTLR 84 at [26]-[44].

[27]R v Ellis (1986) 6 NSWLR 603 at 604. The principle was applied in Nona because the admissions were made in circumstances in which law enforcement authorities had not been able to obtain sufficient evidence to charge the offender for those offences and were unlikely to do so: see Nona v The Queen (2012) 31 NTLR 84 at [29].

[28]Nona v The Queen (2012) 31 NTLR 84 at [32].

[29]Ryan v The Queen (2001) 206 CLR 267 per McHugh J at [15], quoted with approval by the NSW Court of Criminal Appeal in Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40 at [17].

[30]Nona v The Queen (2012) 31 NTLR 84 at [33]-[35], citing Raad v R [2011] NSWCCA 138 at [51]; S v The Queen [2008] NSWCCA 186; (2008) 186 A Crim R 505 at [10]; R v Gallagher (1991) 23 NSWLR 220 at 227-228; Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40 at [19]; Ryan v The Queen (2001) 206 CLR 267 at 272-273.

[31]Nona v The Queen (2012) 31 NTLR 84 at [36], citing Ryan v The Queen (2001) 206 CLR 267 at [185] per Callinan J.

[32]Nona v The Queen (2012) 31 NTLR 84 at [43], citing R v GLB [2003] NSWCCA 210 at [33] per James J (with whom Sheller JA and O’Keefe agreed).

[33]Nona v The Queen (2012) 31 NTLR 84 at [44].

[34]A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters 3^rd ed, 2014) at [6.80], citing Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673 at [44]; Scerri v The Queen [2010] VSCA 287 at [30]; cf R v Pang [1999] NSWCCA 4 at (16]; R v Gladkowski [2000] QCA 352 at [10]; R v M [2005] NSWCCA 224 at [28]; Kauwenberghs v The Queen [2008] NSWCCA 98 at [102].