Williams v Balchin [2012] NTSC 15

Austin v The Queen (1985) 121 LSJS 181; Campbell v Westphal [2012] NTSC 09; Daniels v The Queen [2007] NTCCA 9; Joran and Ors v Wilson and Musgrave (2006) NTLR 65; Musgrave v Luyawanga & Ors and Hales v Steward [2004] NTSC 53; R v D [1995] QCA 329; [1996] Qd R 363; R v Syrch and Burns [2006] NTCCA 20; (2006) 165 A Crim R 129; R v Tait (1979) 46 FLR 386; R v Teremoana (1990) 54 SASR 30; referred

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

Williams v Balchin [2012] NTSC 15

[1] This is an appeal against a sentence imposed by the Court of Summary Jurisdiction on 30 September 2011.

[2] The appellant pleaded guilty to one count of supply cannabis, contrary to section 5(1) of the Misuse of Drugs Act (NT). The offence was committed on 5 June 2010_._ The quantity was 44 grams of cannabis plant material. As the quantity was less than 50 grams it was neither a trafficable nor a commercial quantity. It was clear however the intention, albeit unfulfilled was to sell some of the cannabis.

[3] For the purposes of this appeal, it is important to appreciate the amount of cannabis charged was amended on the day of the plea to reflect the correct quantity. Further, an aggravating circumstance originally alleging the drug was supplied to a person in an Indigenous community was withdrawn.[1]

[4] The appellant was convicted and sentenced to imprisonment for one month to be suspended after service of 14 days. An operational period of 12 months was set. The sentence was backdated to commence on 28 September 2011 to take into account the time the appellant had already spent in custody prior to sentencing. On appeal, both parties acknowledged the sentence should have been backdated to commence 27 September 2011 as the appellant had spent four days in custody. Nothing turns on this in terms of the substantive grounds. It is relevant however to re-sentencing.

Agreed Facts Presented to the Court of Summary Jurisdiction

[5] The facts were that on the morning of Saturday 5 June 2010, the appellant departed Darwin on a flight to Maningrida. Upon arrival at Maningrida his luggage was searched by police. A small package containing cannabis wrapped in tape was located in his possession. Police asked the offender what the package contained. He replied, "Smoke. Ganga".

[6] A subsequent search located two further hidden packages containing cannabis taped into the bottom of a bag under the support panel. When asked what the packages contained the appellant admitted some of the cannabis was for him to smoke and some was for him to sell. The appellant was arrested and taken to the Maningrida Police Station where he later declined to take part in an interview. The total weight of cannabis found in the appellant's possession was 44 grams.

[7] In coming to his decision on a sentence of imprisonment, His Honour was most concerned that the intended supply was to take place in an Aboriginal community. His Honour drew on his experience in Aboriginal communities as he was entitled to do.[2] His Honour referred to the significant problems caused by cannabis in communities. His Honour referred to the fact that an element of actual supply "in an Aboriginal community" had been withdrawn,[3] however His Honour said what made the offending serious was that the appellant took the cannabis to the community with the purpose of supplying and indeed selling it.

[8] The principles applicable to an appeal against a sentence are clear and well settled.[4] The sentence is presumed to be correct. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. A court should only interfere if it is shown that the original sentencing judge was in error or acted on a wrong principle or misunderstood or wrongly assessed a significant feature of the evidence. Whilst error may appear in what the sentencing judge has said, or the very terms of the sentence itself may be such that it manifests such an error, caution must be taken if the appellate court is to alter the imposed sentence.

[9] The first ground of appeal alleges the sentence imposed was manifestly excessive. Within this ground the following subsidiary grounds were argued:

• (i) Failing to consider imprisonment as a last option;

• (ii) Failing to consider the effect of section 37 of the Misuse of Drugs Act (NT); and

• (iii) Impermissibly aggravating the sentence by having regard to circumstances contained in charges that had been withdrawn.

[10] On behalf of the respondent this Court was informed the Appeal would be conceded. It was conceded that ground (1)(iii) (above) had merit. Although the definition of "supply" in the Misuse of Drugs Act (NT) includes all acts preparatory to an actual "supply", (such as here where the drugs were transported or otherwise prepared with the purpose of supply), the circumstance of aggravation is not expressed to be generally in an "indigenous community" but rather "to a person in an indigenous community".[5]

[11] Although it is not clear, this additional element may have been a reason why the circumstance of aggravation was withdrawn. There was no actual "supply" in the sense that would trigger the circumstance of aggravation. This does not detract from the fact that the appellant's conduct amounted to a 'supply' according to the definition under the Act. The particular circumstance of aggravation would have increased the maximum penalty from 5 years to 9 years imprisonment.

[12] In a similar way, the circumstance of aggravation that may be charged when cannabis is supplied to a child appears to require proof of an actual supply: "the offender is an adult and the person to whom it is supplied is a child",[6] rather than mere proof of the general (extended) definition of supply in the Misuse of Drugs Act.

[13] The appellant relies on the principle derived from R v De Simoni[7] that a sentencer cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence. In De Simoni Gibbs CJ explained the position as follows:[8]

[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted ... [A] judge, in imposing a sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognised as early as the eighteenth century.

[14] Although the principle is clear enough, its application has caused difficulties when it is necessary to determine whether particular sentencing facts that are to be taken into account amount to a true "circumstance of aggravation", the factual basis of another charge, or whether the particular facts are attendant circumstances that may bear upon the overall objective seriousness of the crime.[9]

[15] It is clear not every attendant circumstance that may bear upon the overall objective seriousness of the crime need form the basis of another charge.

[16] This issue comes down to what surrounding circumstances should properly be taken into account without infringing the De Simoni principle. In this case it is a fine line. It was never alleged the appellant "supplied a person in an Indigenous community". That would trigger that particular circumstance of aggravation thus elevating the applicable maximum penalty to nine years. As it was, that circumstance of aggravation was withdrawn. Nevertheless, the fact the cannabis was taken to Maningrida, an Aboriginal community, was a relevant attendant circumstance capable of bearing on the assessment of the gravity of the offending.

[17] Any activity relating to the supply of drugs in Aboriginal communities attracts an emphasized application of the principle of general deterrence given the serious harm done in communities, "both in terms of human misery and economic harm to individual families".[10] The authorities also however indicate that the individual circumstances of offenders are still to be taken into account, particularly in relation to first offenders and relatively small amounts of cannabis.[11]

[18] The full range of sentencing options, unless constrained by s 37(2), (3) Misuse of Drugs Act (NT) are available. The appellant did not fall within s 37(2), (3) Misuse of Drugs Act (NT), effectively a mandatory term of imprisonment unless particular circumstances are positively found.

[19] Although the fact of transporting the cannabis to an Aboriginal community is an attendant fact increasing the objective seriousness of the offending; that factor alone cannot aggravate the assessment of the seriousness of the offending to a degree equivalent to a situation where the circumstance of aggravation has been charged. It cannot aggravate the penalty in a way that excludes from proper consideration all other sentencing options which on the authorities are reasonably available. I am persuaded His Honour elevated the assessment of the gravity of the offence to a level equivalent to a charge where the circumstance of aggravation applied.

[20] I am persuaded ground one is made out, particularly when additionally considering the appellant's age and antecedents. In the circumstances, it is not necessary to consider the further grounds, save that the subjective antecedents are also relevant to the question of whether to allow the appeal.

[21] In re-sentencing the appellant, I bear in mind the seriousness of transporting cannabis to a community in these circumstances for the well known reasons already outlined above. At the same time I acknowledge the aggravating circumstance previously charged does not apply. The appellant was 21 years of age at the time of the offending with no previous convictions. He had spent four days in custody at the time of sentencing. He was working, with a young family and had good prospects of rehabilitation. He made admissions in relation to his intention to supply. He pleaded guilty, although there was a delay in finalising the matter given on an earlier occasion he did not attend Court. Given the time already spent in custody and the time since the offending, in my view a fine is appropriate. The appellant will be convicted and fined six hundred dollars. There will be a victim's levy of $40.00.

[22] The appeal is allowed.

[23] The sentence of the Court of Summary Jurisdiction of 30 September 2011 is quashed.

[24] The appellant is convicted and fined six hundred dollars and is to pay a victim's levy of $40.00.

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[1] S 5(2)(a)(iv) Misuse of Drugs Act (NT), carrying a maximum penalty of 9 years imprisonment.

[4] R v Tait (1979) 46 FLR 386.

[5] S 5(2)(iv) Misuse of Drugs Act (NT).

[6] S 5(2)(iv) Misuse of Drugs Act (NT).

[7] [1981] HCA 31; (1981) 147 CLR 383.

[9] Many cases have discussed the application of and limitations of R v De Simoni (above); R v D [1995] QCA 329; [1996] Qd R 363; Austin v The Queen (1985) 121 LSJS 181; R v Teremoana (1990) 54 SASR 30; R v Syrch and Burns [2006] NTCCA 20; (2006) 165 A Crim R 129.

[10] Campbell v Westphal [2012] NTSC 09, Kelly J; Musgrave v Liyawanga & Ors and Hales v Steward [2004] NTSC 53; Daniels v The Queen [2007] NTCCA 9.

[11] Musgrave v Liyawanga & Ors and Hales v Stewart (above) concerning the successful Crown appeal against the non imposition of convictions; upon appeal convictions were imposed. See also Joran and Ors v Wilson and Musgrave [2006] NTSC 46; (2006) 17 NTLR 65.