Scott v Perry [2003] NTSC 26

During the morning of Tuesday 5 March 2002, the appellant chartered an aircraft to travel from Maningrida to Jabiru and back to Maningrida. Information was received by police that the appellant was conveying cannabis from Jabiru to Maningrida.

At 5.30 pm police attended at Maningrida Airport with a search warrant and searched the Maningrida Progress Association plane, VHMPA 1 chartered by Mr Scott. Travelling with the appellant in that plane were four other passengers. During the search, police found two cereal cartons. Seals on the cartons appeared to have been tampered with. Upon closer inspection, police located a bag of cannabis inside each box or carton. The appellant's other property was searched but no other suspicious items were found.

The appellant was arrested and conveyed to Maningrida Police Station where he was held under s 137 of the Police Administration Act. The cannabis weighed in at 510.6 grams, however it was damp and it was conceded that the dry net weight would have been something under 500 grams.

The cannabis was exhibited and at approximately 7 pm, the appellant participated in a taped formal record of interview in which he made full admissions to buying the cannabis in Jabiru for $5,000, packing it into two cereal boxes and arranging to convey it back to Maningrida.

The appellant stated that the cannabis was to be split five ways amongst himself and four other people at Maningrida. It was common ground that each of those four other people had contributed $1,000 to the kitty and it was conceded that it was not for profit, or would have been a not for profit supply. The appellant declined to say who the other four people were. He was charged and later bailed.

[3] The appellant had 26 prior convictions, mostly for minor traffic matters, extending over a period from 1981 to 2000. The only prior conviction for drug offending was a conviction on 18 February 1998 for possession of a trafficable quantity of cannabis for which the appellant received a $500 fine. The circumstances of that offending were that on the afternoon of

5 January 1998, the appellant was arrested at Maningrida airport after a search of his luggage revealed 82 grams of cannabis therein.

[4] Before proceeding further, it is necessary to record that although according to ordinary principles this may have more resembled an attempted supply rather than an actual supply, the definition of "supply" in s 3(1) of the Misuse of Drugs Act is very wide indeed:

(a) give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration or in expectation of fee, reward or consideration;

(b) offering to do an act referred to in paragraph (a); or

(c) doing or offering to do an act preparatory to, in furtherance of, or for the purpose of, an act referred to in paragraph (a);

[5] A pre-sentence report was obtained, according to which the appellant stated he needed to smoke daily in order to relieve depression and stress and that buying cannabis in bulk would save him $5,000. He showed no remorse and believed he had done no wrong as his share was for personal use and not for profit. The author of the report advised that the appellant's doctor had treated him for mild depression in his teenage years and also for anxiety and depression in 1995. There was evidence of a suicide attempt in 1998, but the appellant was not now at risk. There was no medical evidence that the appellant suffered from any psychiatric condition such as clinical depression at the time of this offending, although he had a history of unsuccessfully trying to obtain valium for anxiety and depression from the local clinic, a long history of stress and depression over many years and was being treated at the time of sentence with anti-depressants.

[6] The appellant is 39 years of age, of European descent, born in New Guinea but an Australian citizen. He has lived in the Territory since 1968 and attended High School to Year 11. He is "married" to an Aboriginal woman from Maningrida. They have the care of four children between the ages of four and thirteen. The appellant was unemployed, but had previously worked as a cook at a take-away restaurant which he also managed when the manager was absent. The appellant has lived in Maningrida since 1988, working initially as a handyman and maintenance worker before being employed as a cook. At the time of sentence, he did the shopping and cooking for his wife's extended family, the gardening around the house and looked after two invalid relatives.

[7] The maximum sentence which the appellant faced was imprisonment for

five years or a fine of $10,000, although the learned Magistrate could not impose a sentence greater than a fine of $10,000, or imprisonment for

two years: see ss 5(2)(iv) and 22 of the Misuse of Drugs Act.

[8] Because this was a second offence against the Misuse of Drugs Act,

ss 37(2)(b) and (3) required the Court to impose a sentence of not less than actual imprisonment for 28 days unless the Court was of the opinion that, having regard to the particular circumstances of the offence or the offender, such a penalty should not be imposed. It was conceded by counsel for the appellant that the appellant had not discharged the onus cast upon him to establish "particular circumstances" and that therefore an actual sentence of imprisonment of not less than 28 days was inevitable.

[9] Counsel for the appellant nevertheless submitted that the overall sentence was manifestly excessive and that, in particular, the learned Magistrate should have imposed a partially suspended sentence. His submission was that the sentence reflected an over-emphasis on the deterrent and punishment aspects of sentencing and a complete lack of the rehabilitative aspects which could have been achieved by a partially suspended sentence.

[10] It is clear that the learned Magistrate took the view that nothing less than a sentence to be fully served was warranted. Once the conclusion is reached that a sentence of imprisonment is warranted, only two questions are left. The first relates to the length of the sentence imposed, bearing in mind that it is an error to impose a longer sentence than would be warranted merely because the sentencer intends to suspend the sentence in whole or in part. The second relates to the discretion to suspend at all, which usually depends upon the strength of the personal mitigating circumstances of the offender compared with the seriousness of the circumstances of the offence. In this case, the circumstances of the offence were of an objectively serious nature. The supply was in an Aboriginal community for consumption in an Aboriginal community. As the learned Magistrate rightly observed, this was an aggravating factor. In R v Thomas Edward Wesley (unreported SCNT SCC 20103640, 20 September 2001) Angel ACJ said:

... as I have said on previous occasions, supplying cannabis to Aboriginals on remote communities is to be viewed seriously. As

Mr Elliott for the Crown said, there are sufficient social problems on those remote communities by way of alcohol and petrol sniffing such that the Court should be very vigilant to do what it can by way of general deterrence to prohibit the added problem of marihuana.

[11] I endorse those sentiments. In recent times there has been a marked increase in offending in Aboriginal communities related to marihuana. Those who supply marihuana for ultimate consumption by those living on these communities, whether or not the consumers are themselves Aborigines, should expect to go to gaol.

[12] On the other hand, there are few mitigating circumstances. The appellant pleaded guilty, but was not remorseful as in his view he had done no wrong. There was no reliable evidence before the learned Magistrate to suggest that cannabis actually assisted his health problems, or that the appellant was unable to find other solutions to his health problems, or was interested in looking to find other solutions. At most, the evidence was that the appellant put forward his own self-serving belief that smoking cannabis relieved his stress, but this was not a circumstance which could carry any weight as a mitigating circumstance. In addition, the appellant had a prior conviction for possession of cannabis at the Maningrida Airport.

[13] In order to establish that the sentence was manifestly excessive, the appellant must show that the sentence was clearly outside the range of the permissible sentence open to the learned Magistrate. The circumstances of the offence and of the offender were not such as to demonstrate that the sentence imposed was manifestly excessive.

[14] The appeal is therefore dismissed.