Donald Roy Tait & Michael Leonard Bartley v The Queen [1979] FCA 32

Federal Court of Australia|1979-05-01|Before: Gallop JJ, Muirhead J

Practice in Northern Territory - illegal importat_on

cases involving lawlessness on a vast scale - Purpose of non-parole perzou - Lesser participation by cco- accused - Disagreement between prosecuter and defarncant

Customs Act 1901 (Cth.), s.233B(1) (b) - Federal Court

Prisoners Ordinance 1976 (iN.T.) - Priscners Act 1967 (Cb.

Open court - Applicazion to sit in camera - Common lav rules - Communications in chambers - Procedure when

Court authorized to sit in camera - Northern Terri-ory

THE QUDEN v. DONALD POY TAIT AND MICHAEL LEONARD BARTLEY

IN THO FEDCRAL COURT OF AUSTRALIA NORTHERI VERRITORY DISTRICT REGISTRY

ON_APPEXT, TRO" THD SUPREME COURT OF THE NORTHERN TERRITORY

JUDGES MZLTNG OPTIR : Breanan, Deane and Gallop JJ. DATE OF CRDLR : 1 May 1979,

The appeal from the Supreme Court of the Mortnern T.rritory against the sentence linposec upon Donald Roy Turt ky the Honourchle Mr. Justics Muirbead on 3 May 1978 whevebr

the said Denald Roy Tait was sentenced to be imprisoned wach

herd Jubour for tne space of 6 years and s calon"ar mouths with @ aon-prstole p2riacd of 2 years, anc 9 calendar months be alJowec und thas the centence pe set aside ani crac an deen thesxcof the 312d Bonelu Poy Tart be sentene rs te

imprisen onc with nard laloar for a per1os of @ yrer: and

8 monthe tu commance on the dete oF the settenca unr eaca

upon him by the Supreme Court of the Northern Territory

and that a period of 4 years and 4 months be specified

as the term during which the said Donald Roy Tait be not eligible to be released on parole in pursuance of the

The appeal from the Supreme Court of the Northern Territory against the sentence imposed upon Michael Leonard Bartley by the Honourable Mr. Justice Muirhead on 3 May 1978 whereby the said Michael Leonard Bartley was sentenced to be imprisoned with hard labour for the space of 3 years and 8 calendar months with a non-parole pericd of 1 year and 6

ON APPEAL FROM THE SUPREME COURT OF THO NORTHERN TERRITORY

Donald Roy Tait and Michael Leonard Bartley wer charged on indictmant before the Supreme Ccurc of the Northern Territory with the offence of importing into Australia a

prohibited import contrary to s.233B(1) (>) of the Cuszom7 Act

1901 (Cth.). The particulars lazd in the indictienc were that on 22 January 1978 tne accused using a lignt aivcrafe landed near Katherine in excess of 143.2 kilograms of cannabis in tie

form cf prepared sticks which had been brought there by them

from outside Australia. To this charge they pleaded guilty. Tait was sentenced to be imprisoned with hacd labour for

6 years and 8 calendar months with a non-parole period of

2 years and 9 calendar months. Partley was sentenced to be imprisoned with hard labour for 3 years and 8 calendar months with a non-parole period of 1 year and 6 calendar months. The

this Court should increase each of those sentences.

Crown appeals against sentences have no tradztional

",..we woulce not seer to encourag which meant that cases were bre s.5D of the Criminal Asve2al Act were not argu beLo 12 JUGS!

Altnoush the existence of error 1s the comron ground which entitles the aprellate courr to in:ervene in appeals by the Crown and by a defendant (cf. R. v. Butler

[1971] V.R.892; R. v. Liesefect; De varie the Actorney-General

[1973] Qd.R.355), there would be few cases where the appel court would intervene on an appeal against sencence to corcect an alleged error by increasing the sentence if the Cron fad not dene what tas reasonably requ: red to assist the sentencing yuage to avoid the error, or 1f the defondant vere unculy prejudiced in mecting for the first timc on appeal the ctruc

turn to the present appeal. A number of errors was said to be revealed by the reasons given by the learned sentencing judge for the sentences imposed. But his Honour''s reasons express no error of principle, nor any error in the understanding of the facts (although the procedure for ascertaining the relevant facts gave ris= to some unforcuncte

difficulties to whach reference 1s made belo.). The Crown sought to demonstrate an error of tae relewanc kind by

sub.witting thac the sentences inmposzd are menifestl

in comparison with the ranoe of santerces said tc be approrsriates to the offence and the circtumstancis of cach Gefendant's case, It was further subritied thet, in Dartley's cise, a sontencing principle which was applicable in the circ arscances, and to which reference will presently be wade, musz have been overlooked by the learned santéencing judges. The principal facts of the case were furnished to the Supreme Court by statements rade by counsel from tne bar table, and by the tendering of sorc documentary exhibits including records of interview given by the defendants. No sworn evidence was adduced, Some further faccs relevant Talt's sentence were communicated to the judse in chambers by counsel for Tait in the presence of counsel for the Crown. When this appeal was first argued, 1t was unders ocd that the discussion between the judge and counsel in chambers related solely to the unsuccessful making of an application by

counsel for Tait that the Court be clesed to allow him to

deal with some matters confidentially, The transcript of the proceedings in the Court suggested that that was the only matter discussed in chambers. Hovrever, after

judgment had been reserved, the appeal was, at the request

of counsel for Tait, relisted and we were infvorred that Matters relevant to Tait's sentence had beer. discussed in

chambers. We acceded to an application to invita the

arnead sentensin edge tc suprit @ report, and his Honour 3 r

furnished a report relacing to the cuankey Giscussiors., as

it appears from that repovt that the record of procee before the Su Macterss waich wer and that he gave weight to wouec counsel hed cella nor in chambars, a qGuesticn arises as to whacher in Ceterrin.ag

this appeal we should take into accoane the metters to

by a P re) ry K 0) th @ I¥ oOa in) anin [ery ay B i" Q, f ey fe 4K 5)

Counsel attended in the judge's Giaimecis to discuss the grounés of the application to closes th2 court, Wnen ccunsel were in charters, his Honour in¢cicat-+é thar he considered that 1f there was materral to be coaveved in confidence, this should occur in chambers, rathei thoi in a closed court. Counsel for the Crown advised thee Eco had no objecticn to tn1s ccuise. Counsel for Tait then +a 2 certain submissions to his Honour relating t2 tn renseas for applying to close the court and to ratters woich should

be taken into account in Tait's favour. The judzs @

counsel that he would take the submissions into account, although he would not make reference to them in his remarks upon passing sentence, The record of the proccedincs

before the Supreme Court did not disclose, and was caéiculate2a

not to disclose, the nature of the discussions in chambers. No "'ritten record was kept of those Ciscussicns but his Honour's report, amplified by a further agreed stateman- of facts (Exhibit A), conveys to us a general understan"ing of the matters discussed. We are constrainea to take those

matters into account, net because? the matters discussed

relevant facts, now furnished to us, wire furnishes to nis

Honour by a procedure which, Tait was assured, it was appropriate for him to folloy in order to have tnese matters considered, It would be unjuse for this Court to igners the mitigating circumstances of whica w2 heve been iuntovrad end which the Supreme Court teok into account merely because the procedure adopted by the learned sentencing judse, with tne consent of both counsel, was not consonant with the procraure which ought to be followec in -vriminal cases. Later in this judgment, we enall r2fer to some of the principles wnaici govern the course which a court should take wher an application is made thet it sit in carera. For the moiect, it suffices to nove that the material whieh we have, at the

request of tne parties, taken into accounr in Cecidiny tre ta

appeal in Tait's case includes information furnished to us by the learned sentencing judge in his report, and an agreed statement of facts (Exhibit A) furnished to us by the parties in amplification of his Honour's report. Although these documents were referred to or received in open court before us, we have thought 1t right net to reveal their references te Tait. Accordirgly, wa have prohibited their puplication until furtier order, and directed tnat they be surtanly kept an the registry. This coursa has not affected public access to

the princisal facts of the case which were publiciv

time, Tait's ccunse] said, Tait was app: ehended and

@rugs, and a syndicate of persons assisre? him in fleeing from that country and thereby placed hir under an obligation to undertake a flight from Bongkok to Australie carrying drugs. Tne svrdicate which hsc rencered hin

this assistance put the prerosal te him in Bangkok.

According took to be an accurate statement, in ovr abcut October 197 he was approached to fly a lezd of buddha sticks into

Australia. Budcha sticks are the flovering teps cf the

Tait agreed to the proposal. Money was advanced to him to pay his fare to the United States and to pay a deposit of $5,006 on the purchase of a suitable aircraft. He found such an aircraft at San Jose in

California, paid the deposit, secured a contract, and

returned to Bangkok. He was then given some additional

November 1977 he again went to the United States. There,

after the aircraft was fitted with long raage tanns a

cost cf a couvile of thousane dcllars ar? a C.&. radio

where he arvuved on 31 Decemtes 1977. Tne @éilrcratc w then placed 141 a hangar for rigular Maitrenaice, Tar

regress of the Mainsenancs from crise time and then sent a message to Sydney For "some youn fellow" to be recrurtzd as an assistance on the fFligne

Australia. He was furnishad fron Sydney with Bartiey

mame and adcress and, in mid-January Syd-ey a pre-paid ticket to Bangkok. Bartley, us ng ticket so provided, travelled to Bangkok on or about

January 1973. Tait nad booked Bartley in at the Irre

Hotel, Bangkox, and met ham on arcival. Tart tock Parcary

to see the aircraft so that be could fanslrarize hans

with at. It aprears that Tait reyurred Bartlay to render DE Y

assistance with the fuel system in th: azrcraft. RBastley

and Tait were to travel on fals- docuients. Tait was

travelling under the nare of Peter Arthur Jones on a

New Zealand passport and had an American pilot's licence in the same name. According to Bartley, Tait had prenared false prlct's licence and aircraft crew identificaticn documents for Bartley. Bartley had no flying skills.

Tait and Bartley lefc Bangkok on Saturéay morning, 21 January 1978. Tait said that when the aircraft Cceparted from Bangkok, it was carrying aprroximate compressed budcha sticks which was the rannwnm quantity that the arrcraf:s could cerry. Tlie sard that the curso was load. 2 by cther persons in Bangkok, and thet he fle- fron the: = te Brunel on the first leg of his jouseney to Australnra, Bartle' on the ctacr hane, in ars sgece7d recocd cf anzervic: said

that tas asrerant zt laadec at an ALr Force flying time fseemn Bansko. and the wlene ves tisn leaded we ta budé@hea stichs which were broeuvht ont in a Rersi bee by four Thaz min in green unirtozrrs. In th:s rec -ré of intearviay

Bartley said he loaded the lurzace ccm tzt +t of the plane ¥ TIE '

local time and stayed there overrisht. Tair refuelliad the

flight plan to the Borneo autho:ities. It wos a faise Flichs I

vw tie: flacht plea Furnisiv;] to the Botneo autherities, Tart fle: the arrere "t on t..g mMorneng cF

22 Japnery 1978 towards the Northorn Territory. he Pace

rea1o contact with a number cf air navigscion actheorir

cross the Australian coastline about 60 miles west of

by radar at the Darwin airport, and was intercep RAAF Hercules aircraft which was diverted for the

He entered controlled airspace, was detected ted by

distance, The Hercules rolled 1ts winss thicr Toit understoed to signal "follow me" put he did not follore that instcuctien as he had he-cd the Eartules ¢1risins & raéz> tha. 2t hac cnly 3 heurs' endararce, and Tait decided to continue wrth his £lignat 1a tae hope tnntc tne Herevles would hare to return fcr Lucl.

Tait expeccod to reccive advice afeer he crossed the Australian coastline drececing hin a Gesignated Janjirg spect where his aircraft world be unloaded and refueiled by a ground party. It waz that Barcley should leave him at that spot and thac Tait, should ixmediateliy return to Brune.

the fuel line, landed the aircraft, disconnected the

fuel line so that there would be a flow of fuel and fired five Verey pistol flares into the aircraft 1n the hope

of destroying 1ts ccontents. The aircraft wis virtually destroyed by fire but only part of the contents was Gestroyed. Tait and Bartley walked through the semb until they came to a road which they thought would leaa

to the Stuart HBighray. Tnrexe they parted emstany. Tail

gave Bartley $100 and instructed hin to cc into Katacrire2

Tart went aicrys the Stevan: a quarter Of a mile then went onto the sereb ard hid. Thee was or the Sunday might. He stev3a ticre atl Cay Moudey, and witked novcnwards along the Stuart Eagh vay tov ares

Darwin for mest of the Mordavy nigat, moving into the sercb 2 Ss: c

whenever a car came past. He had eaten nothing sinze

Saturday night in Brunei. On the Tuesday rorning he

decided he wevld give hirrialf up when he sav tha right

his paynent for p. cticipation in th? cnterpiise. He saic

that he had already received about $US10,000, the major part of which had been outlayed in the purchase of the aircraft. He was asked whether he was to receive any further moneys afters he completed the trip to Australia and his reply was "Yes, $10,000 making a total of $50,0CG and

Maturally the arrcraft was remaining my proporty". Towards

which the Crown necessavsty (src) acres Gr 1mcvLtss your

Honecur to ace pt", no evidceic2 wig cilisd, Taic ga c no evidence and the ficces presented to the senate... SF guage pv

the Crown secn to hav: deen founcd¢d on the 1aformra rcp fura:rsved by both respondents te the investigators. In Outlining the facts from the bar table, cow:sel for toe Crown recited whac each accused had said in records of intervie.

Following the practice 1n the Northern Territory his hcnosur

up would have keen entitlee to require evidence fread Tait és 'to the extenc of his involvenant, 1£ Tait wished to avoie Punishuent by attrabutiag the over-all entrecprenturiai isic

an the venture to oticr partictisercs. Tovover, his Homoer

did accept that Tast's rola was roscerict-d to the orca of the transport, the recrurtment ct Bartluy, and the flying

The facts in Bartley's case were placed before the Court by submissions from the bar table, by the tendering of two records of interviev given by Bartlev, and by the tendering of a transcript of the remarks mace by a Stipendiary Magistrate on 14 December 1577 when

sentencing Bartley in respect of two earlier offences

un Syaéney in 1977. He was offared a jyeb in bha Northern Terricory vo work as a labsurar, to hele in toa procuce on ci a substantisel getacity cf cannsebis., His farc fxer Sydney te Darvin w

be ivprisoned for 8 rsnths, buc the sencerwee of imprisonment was suspended fort).1th ween his en ering

Met Victor Tait, wrth whe... he had bzen to schcol.

Victor Tait 15 tne son of Donald Tait. On 14 Jannery 1478,

Victor Tait offered Bartley an opportunity to travel to Bangkok in order to accompany Donald Ta1t ona flaght from Bangkok to Australia carrying marihuana. Bartley accepted. Victor Tait told Bartley to pick up a prepaid ticket from Qantas in Sydney. Bartley @id this on 16 January 19798. He left for Bangkok on 18 January 1978. Donald Tait met him at the airport and tock him to the Imperial Hstel and gave him 1,000 baht, which 1s about $59, in ad&ition to pa

expenses, Tait cook hin our to the Bangks the amencrentk).

Whon the amending Act came anto force on 10 Novencer 1977, a ney penalty provisicn was sunpstitutec for s.235(1)(c). The maximum penalty in respect of the 1llegal imporca tT of narcotic goods othex then cannebis was increased to a fine not exc:ading $100,000 or imprisonment. for a period not exceec¢ine 25 years or both, and é new provisron desir; particularly wich cannanis incortée tion was inserted. Although the new provision G@id prot increase tha Teal prescribed in respect of the import vizsn of cannch1s above the meximum previously preseriv2d in respect cf the

importation of any narcocie gocds, 12 removed the iilezal

importation of narcotic goods other than cannabis from

the class of offences for which the old maximum is applicable. This amendment effectively increased the range of sentences which the courts would impose in respest of the lllegal importation of cannabis. The common maximum penalty repealed by the 1977 amendment may have been reserved for cases cf importation of heroin or other drugs of a more destructive nature than cannabis. Although in

Reg. v. Peal (1971) 1 N.S.W.L.R.247 at pp.256,257, it was

said that the Court's attitude to sentencing under s$.235 (1) (ec)

was not to cistinguish betveen cannabis and cther drugs such

kh. ve Jackecn (1972) 26 O.T.R.120 en -p.1it,iia*. As tie Full Cours cf the Supre:ne Coari of Sc LP

Jackson's cave: "... a court faced wrtn the ronce of

that all drucs referred to are equally harmful". That Court held th traffreking in Jess harmfal crucs wes

less serious" than trafficking in other drugc im contra 'caziorn of s.2328 of the Custers Act. Althevshn tne 1 increascd the rance of penalties which might be imvosed, the sentencing discretion 18 exercised eccording to tnr.. Carcumstances of each case,

A maxinun Genalty 1s raservad far the woress typ. of case falisng within the relevent prohiznition. The

sentenciayg which sccutes prwnurtien cal cor parabziiry etary

sentences imposed (see R. v. McMahon (1978) 19 ALR 448),

The prescribing of a maximum penalty in respect of an offence not only marks the limits of the court's discretionary power as to sentence, 1t also ordinarily prescribes what the penalty should be in the worst type of case which falls within the relevant class of offence.

In Reynolds v. Wilkinson (1948) 51 V.A.L.R.17 at pls

"Tt ray be said that it icy o: che lav thaw the manima ar for tas worst cases of tre ser: frrs - offenders snoulé, in t' of sy maiigrancy, oo Freace col

" The submission, I think, 1s based upon a false premise. A maximum sentence prescripved

The true rule as I understand 1t 1s that the maximum sentence should be reserved for the

worst type of case falling within the pronibition or, as it is expressed by Dwyer C.J. in Reynolds v. Wilkinson, (1918) 51 W.A.L.R.17 at p.18, 'for tha worse cases of the sort', That eu:pressicn ¢.ould be understood to be marking cut a rance ara an offence may be within 1c notwithstenidinag that 1t could have beer worse than it v

We adort what was said in there cases as to the appropriates principle Tnaat priaciple requites crac roth the mature o* tnt cxime ans tne carcupltanrces cf the cxrainnal Le concidcrec in devermisine whecner tha case 15 of tue «ors type.

as to the deleterious effects of cannabis. The relevant view

ressed by tre legislature. It is for tr> courts to evaluate only tne

sericusness of the cenduct by which the lav as express27 in

of the crim2 in the preeent cese falls a little s:° ct of the

worst type of case. It was tho cnly oevottation which enthes

defendant had thus far carried out; there was no element of violence or corruption of narcotics agents. There is a finding that Tait was not the instigator nor mastermind of the importation. These considerations tend to support a conclusion that, even in Tait's case, the circumstances do not require the imposition of the maximum sentence. Bartiey is clearly in a lesser category.

On the other hand, the deterrent aspect of punishme is of primary importance in cases of this kind. The sentence should ceronstrate to others temoted to encage in lavlesseness

on a vast scale that tl.e punishme (fF (@) rTEbLd fa) us ) ran cay Iera o Lh

Ccalculatedé to proverzr society fron the Geliberete altach

can more confidently be assureé t> oparace. Those vho deliberately chooses to run the risk of punish one in oiler to acquire @ profit from the venture cannot pourt to mitigating circumstances of the sort which stard the cnancs offendex in good stead. The extent to which a sentelce recedes from the maximum in cases of this kind is livites

by the necessity to imeose sentences of uneavavec.zl severity as the west efficient means availa' enforce the relevant prohibztion, Our attention was dirceted to a nurber of unxcported decisions of Australian courts

which expressed or applied this approach wiea dealinjy vit

drug trafficking on a large scale. It 1s a sound approach. In our view, the learned sentencing judge could not have given the deterrent aspect of Tait's sentence the weight which was required by the nature of the crime and his participation in it, for these circumstances lead to a sentence which must approach closeiv to the maximum, The sentence which he 1urposed should not be ailowed to stand,

and it becowes the daty of this Ccurt to 17pos2 the

Coruwonvealth Fiizscness Act 1967 anil s.4 of th: Pa ole of

Prisonexs Ora.nance 1°76 (N.T.). No dovbt an cojyeci cf parol

is to aid an the rehabilitation of a priconer (R. v. Cur_av [1975] V.R.647), but when the offence involves drus trafficling, réhabilizarcion must b2 balanced against tie

€8 at p.91). Though the court 23 not to aisume eituer thet

release from caztody at the emprratian of a nen-parsls period

eccnd:gn punnsrrent. In Powar v. The Quren (1971) 131 C.1.R.

623 at p.627, Barwick C.d. aed }in.1ias, Stenhen ana Mason Jc

which the paroling authority must consider the prisoner's case but to the time for which the priscner must remain in confinement. The

principles of sentencing, the prisoner should impriscned..."

consicer wnecher tno seniencs confinement. To the cenc t

a chancs of rit a longer tinue, a shorter tire, r. taat cbhyectir

The fects of Tait's case, consicered in the light of these principles, invice the most sarious actention to s.4(3) of tua

Parole of Prisoners Ordinance 1971, which provides that the

duty to fir a non-rarole perisl Cocs not anply "12 tic cous:

considers that the nature of the offence or offanacts and the antecedents cf the offender do no: warstant tne spect ins oF he l term of amp.isonteant". Were it net fo. che vi2' of

the learned senteneing jgudec that @ ron-purels cexricd stoald

be fixed and the matter contained in Test bit A (fa the contre! of which we make nu further reference), we would na. mave been

was warranted. Those factors have, however, led us to give weight to the prospect of Tait's rehabilitation, and to fix a non-parole period accordinely. The

appropriate sentence, after taking into account ths

time that Tait spent 1n custody before being sentenced, is a term of imprisonment for 8 yesrs and 8 nonths, and

a non-parole period of 4 years ana 4 ronchs shovid b

be reflected by trl sencence anrortad (Ball vw. PR. (ay 733

case. The comme. feature 1S, Of course, that the conduct of eaci constituted participaticn in the sare crime. It

though of less significance then Tait with comparable if not equal severity. Reliauce vas placed

on R. v. Weisom and Ochors [1564} 3 ALL ER 277 ( tha great

train reboury care) waLch was said to enpsecss 2 s7rtancin,

sentences, The case against Bartley was not so presented before the learned sentencing judge, and, for the reasons earlier stated, we do not propose to examine the submitted principle or to interfere with the sentence imposed upon Bartlev on the grounds that it should nave been applied

resulted in more serious punishment trarn his Honcur tires

for previous good cor@uct gives no immunity fron sever punishr cnt in cases of this kind. His scntence vas certeiniy 2t tho lowes end cf the rardt Hovewe sr, Lesviog

"ya +? a, ~ Sessa Ng prire ~le, the surcrace

Ts mle oe -fpnr - ag 7 I} - m4 itselt dees net wanitest to our sat? stacticn thar nis

Honouc's discretion wes affected by error in Bastiey's cas.

and as to the fixing of a non-prrole period in Tait's ca

was, as we have indicated, affected 14 part by tl.z

to us and to the judge in confidencze. To deny the rublic

p- th far) a ct PB Oo ie} cd Cc pp 0) a fe) u) be K su "Tr ary c Tr a

e G@if{ficult procecacal questions which a@r1s2 when

In order that a court may accede to an application that it sit in camera, it must appear either that there 18 a statutory provyisicn which enables it to dco so, or that the case falls within one of the "strictly defined exceptions" fas Lord

Blanesburgh described them in McPnerson v. McPherson

(1936] A.C.177 at p.200) to the rule that the proceedings of courts of justice should ke conducted "piblicliy aad ain open vier" (Scott v. Scotr [1913] A.C.417 at p.4dili,

Apart from statute, a court has no disereticn as to

whethoar lt sies in yuplic o¢ un private. That rule 24 as . z Tas j = - = 7 -ir) =~ Ln +, - rad Cleatiy cateavilisned aS 1% 13 Gscencsri to the precio

Dickason (1913) 17 C.i.R2.50 az p.5l Par-on A.C.3.,

with the concurzrenec cf the cther Justices of th2 dich

At a glance

Court

Decision date

Before

Source

Judgment (276 paragraphs)

Cases Cited (1)

Cited By (1)