Rigby v Kotis

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Hiley J
• Judgment Date: 25 July 2018
• Neutral Citation: [2018] NTSC 48
• Date: 25 July 2018
• Docket Number: FILE NO: LCA 26 of 2017 (21708472)

[2018] NTSC 48

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment Of:

Hiley J

FILE NO: LCA 26 of 2017 (21708472)

Between:

Kerry Rigby

Appellant

and

Alexis Kotis

Respondent

REPRESENTATION:

Counsel:

Appellant: T Grealy

Respondent: J Tippett QC

Emitja v The Queen [2016] NTCCA 4 ; Green v The Queen [2011] HCA 49; Harvey v Bofilios [2017] NTSC 68; Noakes v The Queen [2015] NTCCA 7; Whitehurst v The Queen [2011] NTCCA 11; R v Ellis (1986) 6 NSWLR 603; R v Mossman [2017] NTCCA 6; R v Osenkowski (1982) 30 SASR 212; R v Renwick & Johnston [2013] NTCCA 3; R v Roe [2017] NTCCA 7; R v Wilson [2011] NTCCA 9, applied.

CMB v Attorney General for New South Wales [2015] HCA 9 ; DPP v Terrick, DPP v Marks, DPP v Stewart (2009) 24 VR 457; Director of Public Prosecutions v Chatters [2011] TASCCA 8; Director of Public Prosecutions v Nathan Karazisis [2010] VSCA 350; Griffiths v R [1977] HCA 44; Everett v The Queen [1994] HCA 49; R v JW [2010] NSWCCA 49; R v Riley [2006] NTCCA 10; Griffiths v R (1977) 137 CLR 293; Lacey v Attorney-General (Qld) [2011] HCA 10; R v Borkowski (2009) 195 A Crim R 1; R v Carey [1998] 4 VR 13; R v Hernando [2002] NSWCCA 489; R v Lacey; ex parte Attoney-General (Qld) [2009] QCA 274; R v Martyn [2011] NTCCA 13; The State of Western Australia v Munda [2012] WASCA 164; The State of Western Australia v Marchese [2006] WASCA 153; The Queen v Cavanagh-Novelli [2014] NTCCA 21, referred to.

R v Alexander Hatzivalsamis & Anor SCC 21708473 and 21708479; R v Art Lane SCC 21443088; R v. Chantall Dart SCC 21716698; R v Cliff Domaschenz SCC 21434754 and 21414056; R v Gwenda Walsh SCC 21316330 and 21424741; R v Jamie Stewart SCC 21555577 and 21451479; R v John Taylor SCC 21717606; R v Joseph Goryan SCC 21439539; R v Kellyanne Skinner SCC 21716700; R v Mathew Daly & Anor SCC 21653895; 21653896 and 21754356; R v Melissa Anne Byrnes SCC 21526451; R v Michelle Kells SCC 21757113; R v Ms Gird SCC 21413390; R v Peter Talbot SCC 21543167; R v Ryan Bloedorn SCC 21654058; R v Shane Tapp SCC 21635967; R v Stephen Martins SCC 21556129, referred to.

Criminal Code (Tas) s 402; Criminal Code (NT) s 411, s 414; Criminal Appeals Act 2004 (WA) s 40, s 31; Criminal Appeal Act 1912 (NSW) s 5D, s 6; Criminal Code (Qld) s 668E, s 669A; Criminal Procedure Act 2009 (Vic); Local Court (Criminal Procedure) Act (NT) s 163, s 177; Misuse of Drugs Act 1991 (NT) s 5A, s 7A, s 37.

CRIMINAL LAW — APPEAL — CROWN APPEAL AGAINST SENTENCE — General principles concerning Crown appeals against sentence — Residual discretion to dismiss appeal notwithstanding a finding of manifest inadequacy — Application of proviso under s 177(2)(f) of the Local Court (Criminal Procedure) Act (NT) — Sentence by way of fine manifestly inadequate — Head sentence of imprisonment necessary — Appeal allowed

CRIMINAL LAW — DRUG OFFENCES — SENTENCING — Intentionally possess and supply a trafficable quantity of a Schedule 1 drug — Cocaine — Factors relevant to the assessment of moral culpability and objective seriousness of offending — Application of principles in R v Roe — Importance of punishment, denunciation and general deterrence — Comparative sentences relating to other Schedule 1 drugs — Sentence by way of fine manifestly inadequate — Head sentence of imprisonment necessary — Appeal allowed

REASONS FOR JUDGMENT

(Delivered 25 July 2018)

Introduction

1 The appellant has appealed against the sentence imposed upon the respondent by the Local Court on 19 May 2017. The respondent pleaded guilty to:

• (a) intentionally possessing a trafficable quantity of a Schedule 1 drug, namely cocaine, contrary to s 7A(1) of the Misuse of Drugs Act; and

• (b) intentionally supplying less than a commercial quantity of a Schedule 1 drug, namely cocaine, between 1 February 2015 and 15 February 2017, contrary to s 5A(1) of the Misuse of Drugs Act.

2 He was convicted of both offences and sentenced to an aggregate fine of $3000, with two victim's assistance levies of $150 each. A forfeiture order was also made, the respondent having consented to forfeiture of $4000 cash, scales, spoon, cutting agent and clip seal bags.

3 The quantity of cocaine involved was 33.7 grams. That is almost 17 times the amount prescribed under the Misuse of Drugs Act as a trafficable quantity (2 grams). The maximum penalty for the possession of a trafficable quantity of a Schedule 1 drug is seven years imprisonment, and for intentionally supplying a trafficable quantity of cocaine 14 years imprisonment. 1

4 Section 37(2) of the Misuse of Drugs Act imposes a mandatory requirement that a person convicted of an offence that carries a penalty of seven years imprisonment or more serve a term of actual imprisonment of not less than 28 days unless the Court, having had regard to the particular circumstances of the offence or the offender, is of the opinion that such a penalty should not be imposed.

5 The appellant appeals on the ground that the sentence was manifestly inadequate in all the circumstances of the offending and the offender. Notwithstanding that it may have been open to the sentencing judge to

find particular circumstances of the kind referred to in s 37(2) the fundamental contention on behalf of the appellant is that the sentence should have been imprisonment.

General principles concerning Crown appeals against sentence

6 It is fundamental that a trial judge's exercise of the sentencing discretion is not disturbed on appeal unless error is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is inadequate or excessive. It interferes only if it is shown that the sentencing judge was in error. The error may appear in what the sentencing judge said during the proceeding or the sentence itself may be so inadequate or excessive as to manifest such error. It must be shown that the sentence was clearly and not just arguably inadequate or excessive. 2

7 It is important to distinguish between Crown appeals against sentence and appeals by convicted persons. Per French CJ, Crennan and Kiefel JJ in Green v The Queen3 at [1]:

The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the

duty of sentencing convicted persons” 4. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the “residual discretion”.

In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal.

8 The Northern Territory Court of Criminal Appeal referred to the purpose of Crown appeals in R v Renwick & Johnston5 at [3]:

Crown appeals enable the courts to establish and maintain adequate standards of punishment for crime, to correct idiosyncratic views and to correct sentences which are so disproportionate to the seriousness of the crime as to “shock the public conscience”. The Crown is entitled to have sentences corrected which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards.

9 The principles in relation to Crown appeals in the Northern Territory were further considered recently by the Northern Territory Court of Criminal Appeal in R v Mossman6. The Court stated, at [8]:

Crown appeals against sentence should be a rarity brought only to establish some matter of principle…to lay down principles for the guidance of courts sentencing offenders. 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.

10 Avoidance of manifest inadequacy, then, will be a matter of principle which may support a challenge by the Crown on appeal. 7

11 In Mossman the Court added that those principles do not replace the principle expressed by King CJ in R v Osenkowski8 at [212]–[213], namely:

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

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