Act;" 9. There are some problems with the drafting of this provision. I do not understand what purpose the words "subject to subsection (2)" is meant to serve. I do not readily understand how, where an "offence" has been committed against a law of a State which is the equivalent or similar to an offence against a provision of the Misuse of Drugs Act, and the offence against the State law occurred prior to an offence against a provision of the Misuse of Drugs Act for which an accused now stands liable to be convicted and sentenced, the offence for which the accused now stands to be convicted can be properly described as being a "second or subsequent offence against" the State law. Further, it does not appear that the learned Magistrate had a certificate of conviction or any other written record relating to the conviction in the Townsville Magistrate's Court tendered as an exhibit. Nor does it appear that the learned magistrate was told what section of what Act of the State of Queensland the respondent was previously convicted of. Nor does it appear that the learned magistrate was provided with a copy of the text of that Act. One might wonder how the learned magistrate could have concluded in these circumstances, as he appears to have done, that the offence for which the respondent was convicted was the "equivalent of or a similar offence to" an offence against a provision of the Misuse of Drugs Act. Fortunately, I do not have to resolve these difficulties. No point was made of any of these difficulties either before me or the learned magistrate. It was never submitted that the offence in Townsville was not an aggravating circumstance, and the parties were content to argue the case before me and below on the basis that the provisions of ss37(2) and (3) of the Act fell to be applied to the circumstances of this case. Accordingly, what I have to decide is whether, on the material before the learned magistrate, it was open to him, "having regard to the particular circumstances of the offence or the offender" to form the opinion that a sentence of actual imprisonment ought not to be imposed. This being a Crown appeal, an Appellate Court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient: R v Tait and Bartley (1979) 24 ALR 473 at 476; (1979) 46 FLR 386 at 388. The appellant must show that: "... the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error." (R v Mulholland, CCA of NT, unreported, 16/1/91 at 18 per Gallop J). 10. However, as the judgment of the Court of Criminal Appeal of New South Wales in R v Holder (1983) 3 NSWLR 245 illustrates (particularly at 255-6 per Street CJ and at 269-70 per Priestley JA) the court has a residual discretion to dismiss a Crown appeal, notwithstanding that error has been shown, in order to protect a convicted person against unfairness or injustice. Examples of instances where this may occur are examined in the judgment of Priestley JA, as well as in R v Tait and Bartley, at 24 ALR 476-7; 46 FLR 388-90; although the categories are not closed: R v Holder, supra, at 256 per Street CJ. 11. Counsel for the appellant, Mr Wallace, submitted that the learned magistrate made errors of fact, took into account irrelevant matters in deciding not to impose an actual custodial sentence, and that the sentence imposed was in any event manifestly inadequate. The first alleged error of fact was that the learned magistrate concluded that if the respondent received any actual custodial sentence, "there is a strong possibility" that he would lose his employment. Later, the learned magistrate said: "If I was to impose an immediate gaol term Mr Smith will, in all probability, lose his job - I'm not convinced that he would - but in all probability there's a strong probability." 12. Clearly there is a difference between a "strong possibility" and a "strong probability." However I do not think that I should be too analytical of the expressions used by the learned magistrate. His Worship's remarks on sentence followed immediately after submissions were concluded and were delivered ex tempore. I think it is clear enough that his Worship was not prepared to find on the balance of probabilities that loss of employment would follow, but that this was nevertheless a possibility sufficient to be given weight. Mr Wallace submitted that this conclusion was in any event not open to the learned magistrate. Counsel for the respondent had submitted to his Worship that the respondent's employer had indicated to the respondent that the respondent could continue in his employment but "you will have a problem if you go to gaol." The prosecutor did not indicate any disagreement with that submission at the time, but later, in reply to the respondent's counsel's submissions, said: "The Prosecutor: Ms Kerr has stated that if the defendant is imprisoned for a twenty-eight day period or some greater period, he will more than likely lose his job. My instructions, and from inquiries made this morning, are that the defendant has four weeks' recreation leave and he would not lose his job if he took his recreation leave at that period of time. His Worship: That's if he only gets 28 days. The Prosecutor: That's if he only gets 28 days, Your Worship, because he does have those 4 weeks' leave. Any longer period, then they would have to reconsider that particular aspect of it. His Worship: All right." 13. The sentence which the learned magistrate imposed, but suspended, was imprisonment for three months. However that is not a complete answer to Mr Wallace's submission because the learned magistrate could have imposed a sentence of three months, but ordered his release after twenty-eight days pursuant to s5(1)(b) of the Criminal Law (Conditional Release of Offenders) Act. It was in the context of whether any actual term of imprisonment was to be imposed that his Worship's finding that the respondent might lose his employment was of relevance. However, there was no sworn evidence before the magistrate by either party, and the learned magistrate did not give to the respondent any opportunity to call evidence to resolve the conflict between the submission made by Ms Kerr and the submission made by the prosecutor. In those circumstances, had the learned magistrate accepted the prosecutor's submission, he would have fallen into error and denied natural justice to the respondent: see Ross v Svikart [1989] NTSC 47; (1989) 99 FLR 134 at 137-9 per Rice J; G v Bourne (unreported, Angel J, 4/10/91). The prosecutor, if he wished to dispute the respondent's version, ought to have drawn to the court's attention that evidence needed to be called. As he did not do so, it would now be unfair to the respondent to allow the appeal on this ground. 14. The second alleged error is that the learned magistrate made no finding that the respondent obtained the cannabis for his own use. Mr Wallace's submission was directed towards showing that the learned magistrate fell into error in taking into account the appellant's submission that he purchased what appears to have been a not insubstantial quantity of cannabis for his own use because he lived in an isolated area and needed to stockpile his supply, without making a finding to this effect. On the contrary, Mr Wallace submitted that elsewhere in the transcript his Worship indicated that he was not prepared to find that the cannabis was for the respondent's own use. In those circumstances, Mr Wallace submitted that it was wrong for the learned magistrate to take into account the possibility that it was for personal use at all. Mr Cavanagh for the respondent submitted that, in the face of a submission made by counsel for the respondent that the cannabis was for the respondent's personal use, the learned magistrate, if he did not accept that submission, should have indicated that to his counsel, and given him an opportunity to give evidence upon oath: M v Waldron [1988] NTSC 42; (1988) 56 NTR 1 at 5; Ross v Svikart, supra; G v Bourne, supra. As those decisions clearly show, the learned magistrate was not bound to accept a version of the facts put to the court by counsel for the respondent from the bar table. The court can reject the explanation if it passes the bounds of reasonable possibility, but, the learned magistrate ought not to have taken that course without giving the respondent an opportunity to support his story by his oath and that of any other witnesses he might call. 15. In this case, the learned magistrate indicated to Ms Kerr, during the course of her submissions, that he had difficulty believing that the cannabis was for the respondent's personal use. After that intimation was given, Ms Kerr attempted to persuade the learned magistrate that there was nothing in the circumstances which took this explanation beyond the bounds of a reasonable possibility. The learned magistrate made no further comment on the matter until he delivered sentence. If the learned magistrate still was not prepared to accept the respondent's version, he should have informed his counsel accordingly, and indicated that he required his version to be supported by evidence: M v Waldron, supra, at 5. However, in the end result, I am satisfied that the learned magistrate did decide to treat the submission in the proper manner, as is indicated by the remarks made by his Worship: "Perhaps I should have raised that point in considering the offence itself, but it's a factor which I've borne in mind." 16. Mr Wallace's next submission was that, in considering whether there were "particular circumstances of the offender" within the meaning of s37(2) of the Misuse of Drugs Act, the learned magistrate took into account two matters that were irrelevant. The first of these matters was that his Worship took into account the possibility that he might lose his employment; the second was that his Worship took into account the fact that the appellant was thirty-six years of age which was unusual for this type of offence. 17. The question of what is meant by the expression "particular circumstances of the offence or the offender" within the meaning of s37(2) of the Act has been the subject of a number of differing opinions by single justices of this Court. In Maynard v O'Brien (1991) 78 NTR 16, Angel J after reviewing some of these authorities said (at 22): "It seems to me that 'particular circumstances' when referred to in s37(2) of the Act means circumstances 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. 18. In this case, I have come to the conclusion that there are particular or noteworthy circumstances of both the offence and the offender which make it inappropriate for a sentence of imprisonment to be imposed. In doing so, I have reminded myself of the remarks of Asche CJ in Fejo v Ilett; Wilton v Ilett, supra at 11, that 'such particular circumstances will be the exception rather than the rule ...'" 19. In R v Hume (unreported, 7/2/92) Kearney J said, after considering Maynard v O'Brien: "I respectfully agree that the 'particular circumstances' should be sufficiently noteworthy but I see no reason why they should be out of the ordinary. His Honour referred, with apparent approval, to the observation by the Chief Justice in Fejo and Ilett that such particular circumstances will be the exception rather than the rule. With great respect I do not subscribe to that view. I do not consider that the sentencing judge is further constrained, when

considering whether an offender should not be imprisoned pursuant to s37, by being required to bear in mind that the particular circumstances of the offender or the offence must also have to be characterised as being exceptional before the necessary affirmative opinion is reached. 20. I do not consider that the legislature in subsec2 of s37 intended to do more than, as the Chief Justice put it in Fejo and Ilett: `Reversing the normal sentencing approach that non-custodial dispositions must be first considered and rejected before a sentence of imprisonment is imposed.' Bearing that reversal of the normal sentencing approach in mind it seems to me that the ordinary sentencing discretion of a sentencing judge was not intended to be further limited beyond the restriction which is necessarily the case in considering whether the particular circumstances of the offender are sufficiently noteworthy to warrant a non-custodial sentence." 21. Later, Kearney J observed: "This aspect of whether the particular circumstances of the offence or the offender must be found to be exceptional or out of the ordinary is of practical importance. I note that

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.