Dunn v Woodcock [2003] NTSC 24

1A. That the learned Magistrate failed to give due weight to the principles of proportionality.

1. That the condition of the bond is unlawful in that it potentially infringes upon the rights of persons other than the defendant who may reside in the same premises.

[5] The facts of this case are that at about 8 p.m. on Friday 21 June 2002 the appellant was at her home at the Nguiu Community, Bathurst Island. Another woman attended the appellant who sold her two foils containing cannabis for $60. On the following morning, the police spoke to the appellant at the Nguiu Store. The police observed a plastic clipseal bag in the appellant's shirt. The bag, when examined, contained two foils of cannabis weighing 1.5 grams and $240 in notes. The appellant was arrested and conveyed to the Nguiu Police Station where she took part in an electronically recorded record of interview. She made full admissions stating: "I sold 8 foils of cannabis for $30 to people. I was keeping the rest to smoke myself. I was looking for an easy way to make money."

[6] The appellant, a 30 year old single mother of three young children, had no prior convictions. Her counsel submitted that she has been smoking cannabis daily since she was nineteen and that she sold the cannabis to support her own habit. She pleaded guilty. Her only income was a

solo-parent pension and a parenting allowance, averaging $465 a fortnight.

[7] Section 13 of the Sentencing Act permits a court which finds a person guilty of an offence to record a conviction and order that the person be released upon the giving of such security as the court thinks fit that the person will, inter alia, "observe any conditions imposed by the court". Notwithstanding the broad nature of the power to impose conditions conferred upon courts by the section, the authorities establish that similar provisions in other jurisdictions are susceptible to challenge on appeal and that the power to impose conditions is subject to some limitations. Conditions have been rejected if they are uncertain (MacPherson v Beath (1975) 12 SASR 174

at 185); unnecessary (MacPherson v Beach, supra); impose unrealistic or needlessly onerous burdens on the offender (Neil v Steel (1973) 5 SASR 67; Harvey (1989) 40 A Crim R 102); are otherwise "undesirable"

(Attorney-General v Conn (unreported, Court of Criminal Appeal, Victoria, 5 October 1981, at p 6)); impossible of fulfillment (Johnston (1976)

13 SASR 417 at 422-3; Mann v Yannacos (1977) 16 SASR 54); are contrary to law (Bantick v Blunden (1931) 36 ALR 541; Isaacs v McKinnon (1949)

[1949] HCA 64; 80 CLR 502 at 510, 529, 531); or repugnant to the principles or policy of the law (Isaacs v McKinnon, supra, at 523, 529), or are foreign to the purpose of the power (Isaacs v McKinnon at 523). Each of these cases are examples of the sentencer having erred in the exercise of his or her sentencing discretion because the power to impose conditions had not been properly exercised.

[8] I agree with the submission of counsel for the appellant that the condition was unduly oppressive. The common law has jealously protected an individual's home from undue intrusion by law enforcement agencies for centuries by requiring a warrant from a justice before a search can be justified. The justification for this is obvious and hardly needs to be stated, but it is aimed at securing a balance between preventing abuse of power, whilst at the same time permitting intrusion into the privacy of one's home if there is just cause. There can be no "just cause" in the abstract; what is required is that a judge, magistrate or justice has to be persuaded that there are proper grounds for thinking that a search will uncover evidence relating to the commission of an offence. In this Territory the power of search is contained in s 120B of the Police Administration Act which requires a justice to be satisfied by application on oath that there are reasonable grounds for believing that there are dangerous drugs, either already concealed or about to be concealed, on the premises to be searched before a warrant may be issued. The Act contains some further safeguards. Section 120B(5) provides a time limit during which a warrant remains in force.

[9] The condition of this bond purports to require the appellant to consent to any number of searches at any time during the day or night over a period of twelve months, irrespective of whether or not the police have reasonable grounds for believing that there may be dangerous drugs concealed upon the premises, and all this without a warrant or any other form of safeguard. I consider that this condition places an unreasonable burden on the appellant for it places her in the power of the police who could exercise very substantial control over her life by the mere threat of exercising the power to search unreasonably or unfairly.

[10] Counsel for the respondent argued strenuously that the condition was not oppressive. Much was sought to be made of the fact that the condition was imposed with the consent of the appellant. It was submitted that if consent to search is given, a warrant is not necessary. I accept that proposition. It was submitted that if the police used or threatened to use the power unfairly, the appellant could withdraw her consent. But if she did so she would be in breach of her bond. The appellant should not be placed in that position. It was further submitted that the appellant might apply to the Court of Summary Jurisdiction to have the bond varied vide s 14(1)(b) of the Sentencing Act. I accept that this is so, but that does not detract from the fact that the condition is unduly oppressive. I note that in those cases where appeal courts have struck down oppressive conditions, the fact that the appellant had the right to withdraw his or her consent, does not seem to have precluded the appeal court from striking down the condition. If an application is made to vary the bond on the ground that the applicant is no longer willing to comply with a condition of the bond, the original sentencing court may impose a fresh sentence as if the applicant had just been found guilty. However, there is also a right of appeal if it is brought in time. There is no reason why an appeal should not be brought immediately rather than waiting to see what order is ultimately made by the original sentencing court, nor is the failure to apply vide s 14(1)(b) of the Sentencing Act fatal to the appeal. The right to relief on appeal if a ground is established is generally not discretionary.

[11] A further argument developed by Mr Elliott, counsel for the respondent, was that it is often the case that courts impose "therapeutic" conditions which require persons to subject themselves to drug testing, but it is not suggested that those conditions are oppressive. Mr Elliott pointed out that orders requiring persons to undergo therapy are also capable of acting oppressively, yet they are routinely made. I was referred to an article by Richard G Fox, "The Compulsion of Voluntary Treatment In Sentencing" (1992)

16 Crim LJ 37 where the learned author discusses these issues. However, the learned author is far from uncritically accepting of such orders as

Mr Elliott's argument seemed to suggest. At p 39 he says:

The nature or duration of the treatment which the offender is being invited to accept is often ill defined and may violate limits that are imposed on conventional sentences by the proportionality rule in sentencing. The latter demands that the gravity of the sanction must not exceed the seriousness of the crime.

[12] At p 44, the learned author having referred to the fact that appeal courts have rejected conditions, even though agreed to by defendants, on the ground that they were too uncertain, too vague or imposed unrealistic burdens, said:

The Bill of Rights 1688, which is still part of Australian law, prohibits, at least in theory, the imposition of cruel and unusual punishments. Physical, pharmaceutical or psychological forms of treatment which carry significant risk of bodily harm (including forms of electrical and chemical aversive conditioning), or psychological ones which are unusually degrading in their deliberate use of shame and humiliation, or those which demand participation for too long or too intensely may, arguably, constitute unusual if not cruel punishments. That characterisation, if justified, cannot legally be avoided by calling the measure "treatment", nor by obtaining the consent of the offender.

[13] Mr Elliott also submitted that conditions in bonds were not likely to be rejected merely because of their potential to be oppressive, but because they are oppressive. In his submission, the condition in this case was not shown to be actually oppressive; there was no evidence that the police had in fact called even on one occasion to search the appellant's premises. In my opinion, this is a distinction without substance. A condition is oppressive if it has the potential for misuse due to lack of proper safeguards. That is the case here.

[14] The appeal is allowed. The condition of the bond requiring the appellant to allow police access to any premises at which she is residing is struck out, but the sentence imposed is otherwise confirmed.