Gray AJ in Gardener's case - an unreported decision of 29
April last year - spoke of a requirement that 'there be
something
out of the way' about the circumstances in
question. And so his Honour apparently considered that the
fact that the offender
there was a first offender, had
pleaded guilty at the earliest opportunity, had co-operated
with the police, had been a steady
worker, was of good
character - these were matters to be characterised as
ordinary mitigating factors; and so they did not
take the
case out of the ordinary, so as to remove it from a case
requiring immediate imprisonment. With great respect I do
not agree with that approach as a general approach."
22. Normally, sitting as a single justice of this Court, I should follow
the
decisions of other single justices because, as a matter of judicial comity, it
is undesirable that different judges of the Court
should speak with different
voices: see Attorney-General v Wurrbadlumba (1990) 74 NTR 5 at 8 per Asche CJ.
On that basis, in R v
Risk (unreported, 18/7/91) I accepted the approach of
Asche CJ in Fejo v Ilett, and of Gray AJ in R v Gardner, although at the time
I had grave reservations about the correctness of what I shall respectfully
call the "narrow view" of s37(2), viz., that for circumstances
to be
"particular" they should be able to be characterised as "the exception to the
rule" or "exceptional" in the sense of rarely
occurring in practice. In R v
Zalfen (unreported, 28/2/91) counsel drew to my attention Kearney J's
observations in R v Hume, which
persuaded me then that I ought not follow the
narrow view of the section, and that Kearney J was correct.
23. As differing views
have been expressed, it seems to me that I should form
my own opinion as to the proper meaning to be given to the Act. Firstly, I
agree with the general observation that the overall policy of the Act is to
impose more severe maximum sentences for drug offences
generally. But nowhere
can I find any evidence, apart from possibly s37(2), that the legislature
intended to impose harsh penalties
for what might be fairly described as minor
offences. One possible exception to this is s7 which provides a maximum
penalty of seven
years for cultivating a trafficable quantity of a prohibited
plant. In the case of cannabis plants, a "trafficable quantity" is
between
five and nineteen plants, and s37 applies to such an offence. But it must be
remembered that it is not only the number of
plants which indicate the degree
of criminality involved in a cultivation case, but also the size of the
plants; the larger the plants
are, the longer the period of cultivation has
gone on, the more probable it is that the producer will be tempted to use the
plants
for the purposes of sale or other illicit purposes. Consequently, it
is not difficult to see how, although the number of plants
may be small, the
facts in relation to the offence might be serious enough to warrant an actual
custodial sentence. Secondly, I
agree with the observation made by other
judges of this Court that what s37(2) is designed to achieve is to reverse the
normal approach
to sentencing of first discarding non- custodial dispositions.
It seems to me that the approach called for by the legislature is
to look at a
sentence of actual imprisonment unless the circumstances of the offence or of
the offender warrant otherwise. This
places an onus on the accused to
establish that either of those circumstances exist, and if that onus is not
discharged, a twenty-eight
day minimum sentence of actual imprisonment must
follow.
24. Mr Wallace submitted that R v Hume was wrongly decided, that the policy
of the Act was to emphasise general deterrence, and that s37(2) was designed
to limit the discretion of the court to cases which
were not 'run of the
mill'. Mr Wallace referred me to Smith v Torney (1984) 29 NTR 31 and to the
decision of the Court of Criminal Appeal of New South Wales in MacIntyre
(1988) 38 A Crim R 135 in support of his argument, but I am unable to see the
relevance of either of these authorities. Smith v Torney was a decision of
Muirhead J which dealt with the principles of sentencing applicable to cases
of driving whilst disqualified. MacIntyre concerns
the approach to sentencing
applicable to the offence of culpable driving causing death. Neither of these
offences are analogous
to drug offences. I do not disagree with Mr Wallace's
contention that a general increase in the range of penalties combined with
the
provisions of s37 of the Act is an indication by the legislature that
sentences of actual imprisonment should be imposed when
they are designed to
serve the purpose of acting as a general deterrent to others. However, often
general deterrence can also be
sufficiently served by a suspended sentence of
imprisonment. After all, as Walters J observed in Wood v Samuels (1974) 8
SASR 465 at 468: "... a sentence of imprisonment, followed by a suspension,
remains a sentence of imprisonment (R v O'Keefe (1969) 2 QB 29, per Lord
Parker LCJ at 32; Kennedy v Spratt (1972) AC 83 at 91, per Lord Reid); and an
offender dealt with in this way will continue to be at risk, during the period
of the suspension, of
having his suspended sentence reactivated on
re-conviction, with the original term unaltered."
25. But to argue that good character,
for example, ought not to be considered
as a "particular circumstance of an offender" because the type of offences
dealt with by
the Misuse of Drugs Act are of a class which is committed by
many, if not most, persons who are not in any sense members of the criminal
class or even have criminal convictions against them, and that therefore the
courts should tread warily in showing leniency for good
character to avoid
giving the impression that persons of good character may commit offences
against the Act and yet expect lenient
treatment, is to overstate the true
position. Good character, by itself, would hardly ever warrant the imposition
of a non-custodial
sentence for a serious breach of the Act. The offences
caught by the Act, unlike the offence of culpable driving causing death,
require proof of criminal intent, and it is to be noted that save as to the
burden of proof relating to authorisation or honest and
reasonable mistake of
fact (see ss40(d) and (e)) and save as to a few other minor matters, the
Criminal Code is to be read and construed
with the Act: see s20.
26. I agree with Kearney J that s37(2) ought not to be interpreted in
accordance with what I have called
"the narrow view." In the first place, it
is clearly not the experience of this Court that non- custodial sentences are
only exceptionally
imposed. On the contrary, the reverse is in fact true.
One reason for this is that the majority of cases which are dealt with in
this
Court are for breaches of s7 for cultivation of a "commercial quantity" of
cannabis. Because twenty or more plants amount to
a "commercial quantity" the
maximum penalty possible is twenty-five years imprisonment. Hence the Court
of Summary Jurisdiction
has no jurisdiction over those matters: see s22. But
it is not infrequently the case, that on an examination of the facts and
circumstances
of the offence and of the offender, that these cases turn out to
be minor matters which Parliament might more usefully have left
to the Court
of Summary Jurisdiction, bearing in mind the power of that court to impose a
sentence of imprisonment of up to two years.
Why this was not done, can only
be surmised, but presumably Parliament expected that, in most cases where
twenty or more plants were
involved, the likelihood would be that upon an
examination of the facts and circumstances of the case, a sentence of more
than two
years imprisonment (at least as a head sentence) could be expected.
Recent experience suggests that that expectation is incorrect;
the type of
offence regularly being dealt with for cultivating cannabis warranting a head
sentence for two years or more is the exception,
not the rule. But more
importantly, I think Kearney J is correct for the reason that, the narrow view
of s37(2) would give to the
expression "particular circumstances" the meaning
"exceptional circumstances." Whilst the word "exceptional" is not often used
in
Acts of Parliament, nevertheless there are many instances which could be
cited. Instead, the legislature has chosen the word "particular,"
the meaning
of which has been discussed by Angel J in Maynard v O'Brien. In one sense,
the circumstances of each offence or offender
are "particular" or special, in
that, it is rare to find two cases where the facts are identical. However, to
limit the word "particular"
in this fashion would result in tautology, as the
word would then add nothing to the phrase "circumstances of the offence or of
the
offender." Such an interpretation should be avoided. In the end I
consider that the preferable interpretation to be given to s37(2)
is, as Angel
J concluded in Maynard v O'Brien, that the circumstances must be "sufficiently
noteworthy or out of the ordinary, relative
to the proscribed conduct
constituting the offence, or of the offender, to warrant a non-custodial
sentence," but, like Kearney J,
I do not consider that the circumstances need
to be so noteworthy or out of the ordinary as to convey the meaning that only
in rare
cases will there be found circumstances that fall within that class.
Indeed, it is apparent that Angel J himself could not have intended
that
consequence given that he found that the fact that the appellant in that case
was of exemplary character, a first offender,
and intended to use the cannabis
for his own use, amounted to "particular circumstances" warranting the
imposition of a non-custodial
sentence. Such circumstances, in my experience,
could hardly be described as rarely occurring in practice, if that is what was
meant
by the expression "the exception to the rule." And like Kearney J, it
seems to me that if Parliament intended that persons of this
class who grow a
fairly small quantity of cannabis at the back of a five acre block in Humpty
Doo would ordinarily get an actual
custodial sentence, it would have chosen
clearer language than it did.
27. I turn now to consider whether the learned magistrate
did take into
account irrelevant matters in concluding that a sentence of actual
imprisonment was not warranted. The first matter
was the possibility of the
loss of employment if the respondent was imprisoned. In this case, the
respondent was employed at Alyangula
by Groote Eylandt Mining Co Pty Ltd,
virtually the only employer on the island. If he lost his job, he and his
family would have
to leave the island which had been their permanent home for
three years. The respondent had in that three year period gained a reputation
as a diligent worker who performed his work to a high standard. He had become
actively involved in the community in raising funds
for disabled children, in
participation in sport, and in participation in community activities. He had,
for instance, won an award
for the best garden in a Tidy Towns competition.
The evidence before the learned magistrate, which he accepted, was that the
respondent
was for these reasons, highly regarded in the community in which he
lived. Obviously, if the respondent lost his employment and
left the island,
he would no longer be in a position of living in a community where he was held
in such high regard. In my opinion,
the possibility of loss of employment in
this case was a relevant factor when considered in the light of his reputation
in the community,
and the possible loss of enjoyment that living in a
community with such a reputation would bring.
28. The second matter said to
be irrelevant was the reference by the learned
magistrate to the respondent's age. However, on reading his Worship's
remarks, it
seems to me that all his Worship meant to convey was that, because
of his maturity, he was in a position to have built up a record
in the
community in which he lived which could truly be classed as "exceptional" or
"noteworthy." I do not consider that the respondent's
age, as such, was
otherwise a factor in his Worship's considerations.
29. Mr Wallace's final submission was that the circumstances
in this case did
not in fact warrant the imposition of a non-custodial sentence, and that the
sentence imposed was manifestly inadequate.
In part this submission relied
upon an assumption that the learned magistrate made no finding that the
cannabis was not for the
respondent's own use. I have already dealt with that
submission. Another submission was that the prior conviction for possession
of
cannabis in Townsville was too recent and as an aggravating circumstance,
s37(2) foreclosed any reference to it in favour of the
respondent. In my view
the learned magistrate was entitled to have regard to the penalties imposed by
the court in Townsville as
indicating that those prior offences were minimal.
I consider that, where a prior offence is an aggravating circumstance, the
word
"offence" in s37(2) should be read as "offences": see Interpretation Act,
s24. It would defy common sense for a court not to take into consideration
the seriousness or otherwise of a relevant prior conviction,
as well as how
much time had elapsed since that prior conviction had been recorded. I am far
from persuaded that the learned magistrate's
sentence was manifestly
inadequate or that he erred in any way in imposing a suspended sentence of
imprisonment.
30. Finally, I
should add that his Worship applied the tests laid down by
Angel J in Maynard v O'Brien and clearly formed the view that the case
before
him was not "run of the mill." If I am wrong, and that be the true test, it
has not been shown in my opinion that the circumstances
of the offender in
this case did not fit that description.
31. Accordingly the appeal is dismissed with costs.