The Queen v Roe

• Jurisdiction: Northern Territory
• Judge: Grant CJ,Southwood J,Blokland J
• Judgment Date: 25 July 2017
• Court: Court of Criminal Appeal
• Docket Number: FILE NO: CA 11 of 2016 (21556213)
• Date: 25 July 2017

[2017] NTCCA 7

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

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

Judgment of:

Grant CJ, Southwood and Blokland JJ

FILE NO: CA 11 of 2016 (21556213)

Between:

The Queen

Appellant

and

Chad Roe

Respondent

REPRESENTATION:

Counsel:

Appellant: D Morters

Respondent: S Cox SC

DPP (Cth) v Gregory (2011) 34 VR 1 , DPP v Leach (2003) 139 A Crim R 64, Everett v The Queen (1994) 181 CLR 295, Green v The Queen (2011) 244 CLR 462, Griffiths v The Queen (1977) 137 CLR 293, Hili v The Queen (2010) 242 CLR 520, House v The King (1936) 55 CLR 499, Lacey v Attorney-General (Qld) (2011) 242 CLR 573, R v BJW (2000) 112 A Crim R 1, R v Henry (1999) 46 NSWLR 346, R v Hitanaya [2010] NTCCA 3, R v Indrikson [2014] NTCCA 10, Islam v R [2016] NSWCCA 233, R v Koumis (2008) 18 VR 434, R v MacDonnell (2002) 128 A Crim R 44, R v McKee & Brooks (2003) 138 A Crim R 88, R v McDonnell [1997] SCR 948, R v Osenkowski (1982) 30 SASR 212, R v Proom (2003) 85 SASR 120, R v Riley (2006) 161 A Crim R 414, R v Wilson (2011) 30 NTLR 51, Re Attorney-General's Application (No 1) (1999) 48 NSWLR 327, Truong v The Queen (2015) 35 NTLR 186, Wong v The Queen (2001) 207 CLR 584, referred to.

Criminal Code (NT) s 414(1A)

Misuse of Drugs Act (NT) s 5, s 23(6)

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

CRIMINAL LAW — DRUG OFFENCES — JUDGMENT AND PUNISHMENT

Crown appeal against sentence on the ground of manifest inadequacy — supply of a commercial quantity of methamphetamine over an extended period — cross-border importation — primary sentencing purposes are punishment, denunciation, community protection and deterrence — inordinate weight given to rehabilitative purposes — appeal allowed and offender re-sentenced.

REASONS FOR JUDGMENT

(Delivered 25 July 2017)

Southwood J

Grant CJ AND

1 This is a Crown appeal against a partially suspended sentence of imprisonment that was imposed on the respondent by the Supreme Court on 12 October 2016.

2 On 4 August 2016 the respondent pleaded guilty to a single count on an indictment dated 5 May 2016. The count charged that contrary to ss 5( 1) and (2)(b)( iA) of the Misuse of Drugs Act (NT) between 22 July and 21 October 2015 the offender unlawfully took part in the supply of a commercial quantity of methamphetamine. The supply pleaded on the indictment was constituted by a number of instances of supply to different persons forming part of a series of offences of the same or similar character 1 over a continuous period of approximately three months. The maximum penalty for this offence is imprisonment for 25 years.

3 On 12 October 2016 the respondent was sentenced to imprisonment for three years and nine months backdated to 10 November 2015. The sentence of imprisonment was suspended on conditions after the respondent had served one year and nine months in prison. The sentence was suspended after one year and nine months instead of two years because it was a condition of the suspended sentence that the respondent was to enter a 12 week residential rehabilitation program immediately upon being released from prison. An operational period of two years from the date of the respondent's release from prison was fixed.

4 The conditions of the suspended sentence were as follows.

For the operational period of two years from the date of release from prison —

• 1. The respondent will be under the ongoing supervision of a probation and parole officer. He must obey all reasonable directions from his probation and parole officer and he must report to his probation and parole officer within two clear days after his release from prison.

• 2. The respondent must tell his probation and parole officer of any change of address or employment within two clear working days after the change.

• 3. The respondent must not leave the Northern Territory, except with the permission of his probation and parole officer.

• 4. On the respondent's release from prison and as directed by his probation and parole officer, the respondent will immediately enter into the Sunrise Centre Residential Rehabilitation Program or any other program assessed as suitable for him, participate fully in that program and do nothing to cause his early discharge from that program.

• 5. The respondent shall not consume a dangerous drug and he will submit to testing, as directed by his probation and parole officer for the purpose of detecting the presence of dangerous drugs.

• 6. The respondent will participate in assessments, counselling and/or treatment, as directed by his probation and parole officer.

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

• 8. While residing and participating in the residential rehabilitation facility, the respondent will wear or have attached an approved monitoring device and allow the placing or installation in and retrieval from the premises occupied by the respondent any equipment necessary for the effective operation of the monitoring device.

• 9. The respondent will comply with the electronic monitoring rules as stipulated in the Rules for Electronic Monitoring document.

5 A number of observations may be made about those conditions.

6 First, the prohibition on the consumption of dangerous drugs and the obligation to submit to testing for those substances during the two-year operational period cannot be characterised as punitive or onerous in nature. It is simply a requirement that the respondent comply with the law during a period in which he remains subject to sentence and would otherwise have been imprisoned.

7 Secondly, the requirement to submit to a curfew as directed and not leave the nominated residence without prior approval during periods of curfew would subsist only if directed by the probation and parole officer. Whether such a direction is made would depend on the probation and parole officer's assessment of the respondent's progress in the residential rehabilitation course. If the respondent performed well and received a positive exit report from the Sunrise Centre it is unlikely that a curfew would be imposed unless the respondent failed to comply with his other conditions of supervision. If there were concerns about the respondent's progress at the Sunrise Centre, a curfew might be imposed for a short period of time. It is most unlikely that the respondent would be subject to a curfew for the whole period of his supervision.

8 Finally, the requirement that the respondent wear an electronic monitoring device while residing and participating in the residential rehabilitation facility was directed to the 12 week residential rehabilitation program at the Sunrise Centre the appellant was required under condition 4 to undertake immediately upon his release. There was no other residential rehabilitation program in contemplation. Again, it would be incorrect to suggest that the respondent would be subject to that requirement throughout the whole of the two-year operational period.

9 The sole ground of appeal is that the sentence of imprisonment is manifestly inadequate.

Crown appeals

10 This Court has recently had occasion to review and consider the principles governing Crown appeals against sentence. 2 For ease of reference we repeat those observations here.

11 Crown appeals against sentence should be a rarity brought only to establish some matter of principle, and to afford an opportunity to the Court of Criminal Appeal to perform its proper function in this respect; namely, to lay down principles for the guidance of courts sentencing offenders. 3 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. 4

12 As to what will constitute an error in point of principle, in R v Riley this Court stated: 5

In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle. His Honour said:

“It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards,

constitute error in point of principle which the Crown is entitled to have this Court correct.”

13 These remarks do not operate to displace the principle expressed by King CJ in R v Osenkowski, namely: 6

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...