Young, Christopher John Keith v The Queen

[1981] FCA 96

Re: CHRISTOPHER JOHN KEITH YOUNG
And: THE QUEEN
No. NTG 5 of 1981
Prohibited Drugs Act (N.T.)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
Muirhead J.
Keely J.
Fisher J.

CATCHWORDS

Prohibited Drugs Act (N.T.) - sell and possess cannabis. Appeal against severity of sentence - length of minimum non parole period, weight to be given to age, past work record, rehabilitation, amount of drug involved.

Federal Court of Australia Act 1976

Prohibited Drugs Act s.6 (2) (b)

Federal Court of Australia Act

HEARING

DARWIN

#DATE 2:6:1981

JUDGE1

On 17 February last in the Supreme Court of the Northern Territory the appellant pleaded guilty to three charges laid under the Prohibited Drugs Act. He was charged with two counts of selling cannabis contrary to s.6(2)(b) of that Act, the first count relating to sale during the period between 1 August and 21 September 1980, the second count to a period between 21 September and 4 October 1980. On the third count he was charged with possessing cannabis for the purposes of sale and supply contrary to s.6(2)(c) of the Act. The appellant was represented by counsel and in the course of the proceedings the appellant gave evidence as to his involvement with the drugs in question. Full submissions were made on his behalf and the presiding judge, the Chief Justice, adjourned to consider the matter. On 19 February his Honour imposed sentences of 3 months imprisonment on the first two counts and he sentenced the appellant to two years imprisonment with hard labour on the third count. Pursuant to the Parole of Prisoners Ordinance he directed that the appellant should not be eligible for parole until he had served fifteen calendar months of the sentence. All sentences were ordered to be served concurrently.

The appellant has appealed to this court against severity of sentence. The grounds of appeal pursued before us were that the sentences were manifestly excessive, that the Chief Justice failed to pay sufficient regard to the appellant's past work record and that the non-parole period fixed was too long. It was submitted that sufficient regard was not paid to the rehabilitation of the appellant and that the deterrent aspects loomed too large.

We do not find it necessary to deal with the facts in detail. It suffices to say that on 4 October 1980 the police located in premises occupied by the appellant, 1,300 grams of cannabis in bulk form, 85 Buddha sticks and materials clearly held for the purposes of preparing Buddha sticks. It is now common ground that about two weeks earlier the appellant had purchased over a kilogram of cannabis and that he had prepared the Buddha sticks from that supply. The material also indicated that prior to the date of that large purchase the appellant had bought cannabis in Darwin for his own use. From portion of such purchases he made up Buddha sticks which he sold to reimburse himself the costs outlayed. Those sales were the subject of the first and second counts. There was material before the Chief Justice to suggest that the value of the Buddha sticks was not less than $10 per one gram stick and that the street value of the cannabis in the appellant's possession was considerable. The appellant gave evidence as to his earlier involvement with drugs and deposed to the circumstances under which he purchased the large consignment. He stated in effect that it was a fortuitous event, that he paid $800 for the cannabis and that his subsequent actions were designed to recoup himself that amount. He intended to keep the balance of the cannabis for his own consumption. The Chief Justice disbelieved his evidence and it is not now submitted that we could or should interfere with this finding.

In respect of the charges to which the appellant pleaded guilty, the Prohibited Drugs Act provides a maximum sentence of seven years imprisonment for a first offence, a maximum of fifteen years for the second offence. Any subsequent offence is punishable by a maximum period of imprisonment of twenty-five years. This legislation which came into force in January 1978 clearly reflects the policy of the legislature in regard to such offences.

In view of the fact that the sales of cannabis, in small quantities, continued from 1 August until 4 October 1980, it cannot be said that the concurrent sentences of three months imprisonment were excessive, let alone manifestly so. Nor, bearing in mind the amount of cannabis found in the appellant's possession, can it be said that the sentence of two years imprisonment for that offence was manifestly excessive. The amount of the drug involved is a most important factor.

The appellant had no previous convictions for offences of this nature, nor had he been imprisoned previously. He had three unrelated convictions but the last of these was over three years prior to his arrest, an offence associated with driving a vehicle with a prohibited degree of alcohol in his blood. The material before the Chief Justice led him to believe that the appellant was twenty years of age. In fact it is probable that he was then twenty-three years of age. He appears to have had a normal upbringing and advantages. He was a tradesman with skills, was well thought of in employment and had a stable relationship with a young lady. When arrested he was in steady employment. It could not be urged on his behalf that he was either disadvantaged or in urgent need of moneys.

In sentencing the appellant the Chief Justice specifically adverted to his age, the absence of relevant previous convictions, his good work record and the reference (admitted by consent) from his employer. His Honour was aware of the appellant's relationship with his girlfriend which he appears to have regarded as a potentially stabilising factor. Be that as it may, he reached the conclusion, and this finding was not challenged before us, that the appellant was "dealing and intended to continue to deal" on a comparatively large scale. His Honour adverted to the fact that cannabis could be considered as less serious than other drugs, but the legislation in question relates to cannabis, not to drugs in general. He found himself "quite unable" to impose a suspended sentence and he considered his responsibilities required that the sentence should be such as might discourage other persons from dealing in cannabis. Whilst it was common ground that the appellant was a user of cannabis - on his own evidence, at times a heavy user - there was no suggestion of propensity or addiction of a nature likely to affect his judgment or to induce his participation in illegal drug traffic.

We agree with Mr. Gillooly that we can gain little help from penalties imposed in other similar matters, let alone when those relate to penalties in other States under different legislation. Consistency is desirable, but unless one eliminates the judicial discretion it is a goal very difficult to achieve as circumstances of the offence and the background of the offender are never the same.

We are not satisfied that in imposing these sentences the learned Chief Justice fell into error. Having reached his conclusions as to the appellant's motives in purchasing over a kilogram of cannabis and preparing the Buddha sticks the offence fell into a serious category.

His Honour fixed a non-parole period of fifteen calendar months pursuant to the provisions of s.4 of the Parole of Prisoners Act. The appellant is thus not eligible for release on parole until he has served that portion of his sentence. In view of the length of the sentence this was proportionately a long, indeed upon the material submitted to us an unusually long period. Its effect is to deprive the appellant for a considerable period of the opportunity of release under supervision. On the other hand, in considering the amount of the cannabis, the past history of the appellant, the appellant's reasons for offending and the opportunities that life had offered him, the trial judge was entitled, in fixing the non-parole period, to also consider the deterrent aspect of his order. Such a consideration was proper and in accordance with the views expressed by the High Court in Power v. The Queen (1973) 131 C.L.R. 623 at 628.

After carefully considering the matter, we do not consider that this court should interfere with the Chief Justice's directions as to parole.

For these reasons the appeal will be dismissed.