R v. Hogon

Court of Criminal Appeal of the Northern Territory of Australia

Nader, Kearney, Rice JJ.

19 August, 16 September 1987 at Darwin

Criminal law - Appeal by Crown - manifest inadequacy of sentence - possess prohibited drug for supply - whether too much weight given to subjectivew factors - principles of sentencing - Poisons and Dangerous Drugs Act ss. 64(d), 67(1), 81(1)(b).

Sentencing - criminal law - appeal by Crown - manifest inadequacy of sentence - possess prohibited drug for supply
- whether trial judge gave too much weight to subjective factors - principles of sentencing - Poisons and Dangerous Drugs Act ss.64(d), 67(1), 81(1)(b).

Cases considered:
R v. Tait & Barkley (1979) 24 ALR 473
R v. Prindasle (1979) 23 ALR 665
R v. Davey (1980) FLR 57
R v. Osenkowski (1982) 5 A.Crim.R. 394
R v. Molina (1984) 13 A.Crim.R. 76
Jenkins v. The Queen (1986) 20 A.Crim.R. 56

Counsel for Appellant Solicitor for Appellant

Counsel for Respondent

Solicitor for Respondent nad870470

Mr R. Ellis

Solicitor for the Northern Territory

Mr T. Pauling QC Messrs Ward Keller

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. CA 10 of 1987

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

sec No. 443 of 1986

BETWEEN:

THE QUEEN
Appellant

AND:

PETER DAVID HOGON
Respondent

CORAM:	NADER, KEARNEY and RICE JJ

REASONS FOR JUDGMENT
(delivered 16 September 1987)

NADER J:		This is an appeal against a sentence passed on 16 July 1987 for possession of a prohibited drug for the purpose of supply.	The respondent, Peter David Hogon, had pleaded guilty on
6 July 1987 to one count in the following terms:

:!:rr. 3 August 1986 at Darwin in the Northern Territory of tralia, possessed a prohibited drug, namely,
---am0rphine (Heroin) for the purpose of supply to
=ther person.

 ==tion 64(d) of the Poisons and Dangerous Drugs Act
- d	with section 67(1) of that Act.

='-- facts were summarised by the Crown Prosecutor.	The responde--= :i::ade arrangements by telephone with an unknown person in Adela-== £or that person to send a quantity of heroin to Darwin L	 r.sett Air Freight.	The parcel was addressed to Angela
Smith w=	:	the	phone nurr er 85 3139.	On the morning of 3 August

1986, t E	=espondent and two other persons drove to the Ansett Air Fre::....:,: = terminal.	One of the other persons, a woman, entered the off±...:::e.		She said she was there to pick up a parcel for Angela cwcth.	She signed a document, received the parcel, returnee to	the vehicle and handed the parcel to the respondent. The vel:.i.cle was later stopped by police who had it under surveil7ance.		The parcel was found at the respondent's feet togethe= with a newspaper and one of two packets of heroin.
Another	as  £ound between the seats.	The respondent was arrested
and taken to Berrimah Police Station where he was interrogated by Detecti,e Gregory Dowd.	The interrogation was sound-recorded.
There was evidence that the respondent was in need of heroin on the day of his arrest.	He was said to be shaking and appeared ill.	He described himself as 'hanging out'.

The street value of the heroin in the respondent's possession was estimated to be from $20,000 to $60,000 according to the extent that the quantity of powder might be increased by breaking it down.	The respondent had no financial resources.
From 1982 until his arrest he had had only three months employment: for the rest of the time he had been either in prison or unemployed.	The Crown put the purchase price at about $10,000 and said that the money would have been acquired by the sale of some of the heroin.	The Crown conceded that some of the heroin would have been used by the respondent who was an addict.

The penalty for an offence against section 64(d) of the Poisons and Dangerous Drugs Act is prescribed by section 81(1)(b) of the Act.	The relevant parts of that section are as follows:

'81.
PENALTIES

..., a person who is guilty of an offence against this Act is liable-

(b) in the case of an offence against section 64..•(d),..•-

(ii) for a second offence - to imprisonment for 15 years;•..

It was accepted by the respondent that he was a second offender in the relevant sense by reason of a conviction and sentence of

three years imprisonment with hard labour imposed on 18 January 1982 by the South Australian Supreme Court for what is described in the record as 'POSSESSION HEROIN FOR TRADE'.	The respondent served almost 20 months of that sentence,	He has a criminal record that is far from good.

The learned sentencing judge, who had the benefit of observing the respondent giving evidence on oath, found him 'totally unconvincing' when he said that the parcels had been sent to him for his own use and that he did not intend to sell heroin to anyone.	There were other things that the respondent said in evidence that his Honour did not believe.

However, it is clear that his Honour was generally impressed with the prospects for reform of the respondent.	He said, '•..I am far more impressed with the accused's history since he was arrested.	Now, it may well have been that he considered it in his interests to go to Banyan House, which is an institution for the treatment of drug offenders, and to stay there and to take part in its programme.	Indeed, I suspect that had he not made promises along those lines he may not have obtained bail because, as I shall mention in a minute, he had prior convictions.	However, he does seem to have used to his advantage the time at Banyan House.	He has obtained employment. He has utilised the programmes at Banyan House and, most importantly in my view, he has the support of the Director of Banyan house, Mr O'Leary, who has given evidence on his behalf.'

His Honour said, 'Mr O'Leary gave evidence which I found extremely impressive.		It seems to me that Mr O'Leary's assessment of this man is that there is a real chance that he will not offend again.'	The learned sentencing judge was favourably impressed by the report of Mr O'Leary from which he quoted extensively.	Because the evidence emanating from Banyan House was so great a factor in the determination of the sentence passed by his Honour, I have included Mr O'Leary's report as an, annexure to these reasons.

At the time of sentencing, his Honour had before him a letter from Northbrick Industries Pty Ltd in the following terms:

1 TO WHOM IT MAY CONCERN
Northbrick Industries Pty Ltd hereby confirm employment of Peter David Hogon.

Mr Hogon has been in our employ as a casual brick stacker since 17th March, 1987.

During this period he has carried out his duties satisfactorily and has proved to be popular with his fellow employees.
On issuing of this reference Northbrick Industries are aware that the offence is drug related.

(Signature)

P. Cole
Production Manager'

His Honour also said, 'I would have no difficulty in considering probation had this man not an earlier conviction for a similar offence, and this makes it a very difficult task for

me.	The accused's record of prior convictions is not a pretty one and he himself admits that he has been drifting through criminal incidents for all his adult life.	On the other hand, he is now 33 years of age and it is possible that he has come to an understanding that this is a turning point in his career; that he may either spend the rest of his life in prison or on the run, or turn towards something more useful for himself and for the
community.'

His Honour was at pains to express the seriousness of the situation created by reason of the prior drug conviction.	He was also aware that the respondent had every incentive to be a model inmate at Banyan House.

The Crown submitted that the sentencing judge gave too much weight to subjective factors; that he gave too little weight to general deterrence and to punishment.	It was also argued that the sentence was manifestly inadequate.

The Crown reminded the court of the principles governing appeals by the Attorney-General against sentence.	They are well known and have been recently reiterated in this court in Ireland (unreported CCA DATE) and, for the present, need not be repeated.

The Crown referred to the desirability of parity of sentences for offenders who commit like offences. Reference was made to judicial pronouncements concerning inadequate sentences

and considerations affecting the suspension of sentences. Special reference was made to authorities expressing the gravity of the drug problem and the need for appropriately severe sentences for drug offenders.	Such authorities are frequently cited and quoted.	There is nothing to be gained by repeating over and over again the well known passages from those cases.
Those authorities are important and should be kept in mind, but they are of limited use in a concrete case.	The application of general principle to the concrete case is a matter for the art of judgment involving the exercise of discretion.	A sentence may be either so severe or so light that it is manifest that the discretion has miscarried.	But such cases are rare, and, in my opinion, this is not one of them.

It is an oversimplification to see the judge's role in every case as seeking a nice mean between severity, presumed to be in the public interest, on the one hand, and leniency, presumed to be in the interest only of the offender, on the other.	I am sure that the true public interest is not validly expressed in such simple terms.	The public interest may in an appropriate case be promoted, not by severity but by leniency.

In the last analysis the function of the court in administering justice according to the criminal law is to serve the public interest.	It is the public interest that requires that criminals be punished, that weight be given to the

deterrence of the offender and of others.	It is the public interest that requires a sentence to be appropriately proportional to the offence.	In the end there is no other interest that can prevail over the true public interest.	It is in the public interest that a sentence be a just one.	I cite no
authority for these propositions because they seem to me to be axiomatic.

But, as the High Court has reminded us in connexion with at least two other legal topics that occur to me here, namely, those of illegally obtained evidence and public interest  immunity, the public interest is not simple but complex.	The public has an interest in the promotion of certain traditionally accepted ideals which frequently cannot be fully realized simultaneously in the same subject matter.	Strict justice will usually be inconsistent with a full measure of mercy in a given case:	a prudent judge will seek a mean that avoids excessive violence to either ideal.	A sentence providing an effective measure of deterrence may extinguish a newly kindled fire of reform in an offender.	Where should the prudent judgment settle? The question often arises in one's mind whether a sentence, designed to provide an ample measure of deterrence, is so sure to have that effect that a different sentence, that would provide a real chance for the rehabilitation of the offender, should be rejected merely because it would not have a deterrent effect?

The public interest is not always best served by treating general deterrence as paramount.	Where, upon a fair consideration of the evidence in a case, a judge concludes that by not requiring the offender to go to gaol there is sufficient probability that he will become a useful, law-abiding member of society, the public interest may be better served by not sending him to gaol.	If the criminal process by its proper procedures can make a real contribution towards the formation of a good member of society, it should, I  believe, do so.	The chance of that happy result must be a real one based on the evidence.	His Honour said: '•.•if the accused can continue the progress which he has done in the last year he will not only cease to be a menace to the community but he will become a useful member of that community and be in a position to repay to the community some of the damage which he has previously done.'

The gravity of the offence is obviously a major factor. Some crimes are inherently so grave that no likelihood of reform could lead to the conclusion that the public interest would be better served by a non-prison sentence.

This was not such a case, despite the Crown's forceful submissions to the contrary.	The trial judge was careful to consider all important relevant factors.	He designed a sentence for the special set of circumstances confronting him.		His Honour's trust may one day be seen to have been misplaced;	or it may be seen to have been wise.	No-one can now say.	But, if he

is seen to have been right, the community will have gained a useful citizen and will have been saved the expense of keeping the respondent for some months or years in gaol.	The community also has an interest here for a less crassly material consideration:	I believe it would regard the rehabilitation of the respondent as desirable in itself.

I should say explicitly that I have been unable to find any error in his Honour's approach to the sentencing of the respondent.	It was a very special case.	While some judges would, no doubt, disagree with the result, others would not.
That merely reflects the personal element in the sentencing function.	The respondent has not escaped unscathed.	He will remain in peril of gaol for his crime for five years.		The objective gravity of the offence is well demonstrated by the sentence of 5 years imprisonment.	No reasonable person, fully informed of the circumstances of this case, could gain the impression from it that he would be able to trade in heroin with impunity.

I see no reason to disturb the sentence.	I would dismiss the appeal.

KEARNEY J:	The facts and circumstances of this case are set out by Nader J;	I need not do so again.

Over the years trial judges have been reliably informed of the ways heroin is sold in Darwin.	There are 3 usual ways.	The first is by "weight gram", that is a weight of l gram, selling at $600; the second is by "street gram", a weight of¼		gram, selling at $300; the third is by "street deal", a weight of 6/100 of a gram, selling at $100.	The average purity of heroin sold is 13.5%.	In this case the amount of heroin was 5.8 grams.	It can be seen that
5.8 grams of pure heroin is capable of constituting about 716 "street deals", at 13.5% purity.

The point is that 5.8 grams of pure heroin is a very considerable quantity to have in possession; taken with the circumstances of the offence and of the respondent, it leads almost inevitably in my view to an inference that the respondent though then heavily addicted, was, in terms of Darwin usage of the drug, a large-scale heroin dealer and trafficker (and a second offender) on whom a sentence of immediate imprisonment of substantial length would be imposed in the absence of very special circumstances.

In general, when sentencing for this type of offence, courts place the major emphasis upon the need for deterrence where, as here, more than very modest trafficking is indicated.	Sentences of immediate imprisonment are imposed because of the prevalence of the offence and the fact that heroin is so dangerous and injurious to the

community; see the remarks of Burt C.J. in R v Jenkins (1986) 20 A.Crim.R. 56 at 58.	Heroin is the most harmful of the commonly used and traded drugs; as the learned trial Judge said - "it is a wicked drug which causes enormous tragedy in the community", such that "severe penalties should be inflicted upon those who trade in [it]".

Sometimes, nevertheless, and very exceptionally, the circumstances of the particular case are such that rehabilitation of the offender is properly to be given priority over the need for deterrence.	That is to say, there are cases where the community will ultimately be better protected by a sentence which stresses the rehabilitation of the offender rather than the general deterrence of others; in this case, for example, as the learned trial Judge put it,

"	if the accused can continue the progress which he has done in the last year, he will not only cease to be a menace to the community but he will become a useful member ...".

The learned trial judge treated this as an exceptional case.	He considered that the history of the respondent since August 1986 pointed to real prospects of his fundamental reform.	I consider that it was open to his

Honour to reach that conclusion and to rely, as he did, on Mr O'Leary's "extremely impressive" evidence.	His Honour carefully considered all the matters relevant to sentence, before deciding wholly to suspend service of the substantial sentence of imprisonment he imposed.	I am unable  to  say that his Honour's approach was unreasonable in the particular and exceptional circumstances of the case as he found them, or stemmed from some error of fact or of law, or involved a failure to take into account some material consideration or the giving of undue weight to any particular circumstance or matter.	In short, I consider that the decision wholly to suspend the sentence, a decision which his Honour rightly characterized as "a serious and unusual step", lay within the proper sentencing discretion of the learned trial judge, in dealing with a case the circumstances of which were such that it could be properly characterized as an exceptional case.

Accordingly, I agree with Nader J. that the appeal should be dismissed.

RICE J:	This is a Crown appeal as of right pursuant to s.414(c) of the Criminal Code against the sentence imposed  by Asche J., (as he then was,) who, on 16 July 1987, convicted the respondent of the offence of possessing heroin for supply and sentenced him to 5 years' imprisonment but ordered that the sentence be suspended forthwith upon his entering into a bond in his own recognizance of $1,000 to be of good behaviour for 5 years, and during such time to be subject to supervision on probation under a person for the time being appointed by the Director of Correctional Services, which person is requested from time to time to consult with Mr. O'Leary or such other person who may from time to time be the Director of Banyan House.

On 8 July 1987 the respondent pleaded guilty to a charge on indictment that on 3 August 1986 at Darwin he possessed a prohibited  drug, namely, diamorphine (heroin) for the purpose of supply to another person.	That charge was laid under s.64(d) of the Poisons and Dangerous Druqs  Act read with s.67(1) of the same Act.	The total amount of

pure heroin involved after analysis was 5.8 grams.	It had been ordered on consignment by the respondent from an interstate supplier.	After the respondent and two accomplices had picked up the parcel containing the heroin from the air freight terminal at Darwin, they were
intercepted by the police who caught them red-handed.

The learned trial judge accepted that the respondent was the prime instigator and that he intended to use some of the heroin for his own purposes and then trade in the rest for the purpose of obtaining money to pay his supplier, and to purchase more heroin.

Under s.8l(i)(b) of the Poisons and Dangerous Drugs Act, in the case of an offence against s.64(d) of that Act, for a first offence, the maximum penalty is imprisonment for
7 years;	and for a second offence, imprisonment for 15 years.

Section 81(2), provides, in effect, that where a person has been convicted of an offence against a provision of a law elsewhere in Australia and that that provision, in the opinion of the Court, was in substance equivalent to a provision for an offence against the Territory Act, of which he has been found guilty, the previous offence shall for the purposes of penalty be deemed to have been committed against the provisions of the Territory Act.

On 18 January 1982 the respondent was convicted of having in his possession, heroin for trade, and was sentenced by the Supreme Court of South Australia to a term of imprisonment of 3 years.	He served some 20 months of this sentence before being released on parole which expired on 15 August 1984.	The learned trial judge accordingly treated the latest conviction as a second conviction under the Act, with the result that the respondent faced a maximum penalty of imprisonment for 15 years.

The respondent gave evidence before the learned trial judge which was found by him to be totally unconvincing insofar as the respondent suggested that the consignment of heroin had been sent to him for his own use and that he did not intend to sell it to anyone.
Nevertheless, the learned trial judge was impressed by the respondent's history since he was admitted on bail to Banyan House on 12 August 1986.	Banyan House is an institution established some years ago at Darwin for the treatment of drug offenders.	In reaching his decision to suspend the whole of the head sentence, His Honour was obviously influenced very significantly by the evidence of Mr. Anthony O'Leary, the Director of Banyan House, who also gave evidence.	Since it was his evidence which formed the basis of the course which prompted His Honour to suspend the sentence of imprisonment, it is necessary, in order to encapture the full effect of His Honour's reasoning, to set out a lengthy excerpt from his remarks on sentencing:-

Mr. o• eary gave evidence which I found extremely impressive.	It seems to me that Mr. O'Leary's assessment of this man is that there is a real opportunity and a real chance that he will not offend again.	The accused, himself, gave evidence that he is not involved in drugs and wants to keep away from drugs and that they are a complete waste of time and that he's been off drugs for nearly a year.	Of course, those are statements which are very easy to make for a person who is facing a possible sentence of imprisonment.

I would have no difficulty in considering a probation had this man not an earlier conviction for a similar offence, and this makes it a very difficult task for me. The accused's record of prior convictions is not a pretty one, and he, himself, admits that he has been drifting through criminal incidents for all his adult life.

On the other hand, he is now 33 years of age and it is possible that he has come to an understanding that this is a turning point in his career;	that he may either spend the rest of his life in prison or on the run, or turn towards something more useful for himself and for the community.

The trouble I have is with the prior conviction on 18 January 1982 for which he was convicted at the Adelaide Supreme Court of possession of heroin for trade and received 3 years hard labour.	I am told that he was released on parole on 6 September 1983 from that sentence and that his parole expired on 15 August 1984. That is a conviction which I treat as a prior conviction under the Poisons and Dangerous Drugs Act and the result is that for a second conviction the maximum penalty given is 15 years.

Now it becomes a very serious matter, then, to consider whether or not this accused should be given some form of probation, bearing in mind that he has already served a term of imprisonment for a prior offence;	that the legislature makes it perfectly clear that severe penalties should be inflicted upon those who trade in drugs, particularly on a second occasion;	and that the trading in drugs on this occasion - and on the earlier occasion - was in heroin, a wicked drug which causes enormous tragedy in the community.

I am, however, extremely impressed with the evidence given by Mr. O'Leary and the confidence he places in the accused.	I'm well aware that to allow the accused to be released on some form of probation is a serious step and an unusual one in the circumstances.	But weighing the benefits to the community of the two alternatives of sending the accused to prison or releasing the accused

after giving him a sentence which would be suspended, it seems to me that there is value in allowing the accused a chance.

The value to the community, of course, is that if the accused can continue the progress which he has done in the last year, he will not only cease to be a menace to the community but he will become a useful member of that community and be in a position to repay to the community some of the damage which he has previously done.

I appreciate that he had every incentive over the last year to behave himself at Banyan House, but he has shown sufficient self-control to reach level 4, which is a relatively high level in the Banyan House hierarchy;
and he will know, of course, perfectly well that whatever sentence of imprisonment given to him as suspended is something which he will have to serve or very likely serve if he breaks any conditions of probation.

If he has, for about a year, been able to keep himself free of this sort of drug and for about a year now keep himself free of any drugs - and I do not neglect the fact that he was convicted on 20 June 1986 of possessing cannabis and using cannabis, but I note that he was fined $500 and released on a good behaviour bond of $200 on the second charge;	but if he fulfils the hopes and, indeed, expectations of Mr. O'Leary that he will continue now to move into society in a useful and productive way and will cease to associate with those whom he knows in the trade in heroin, then there is a hope for him and a hope for society;	and I take considerable notice of Mr. O'Leary's observations to the effect that to send him to prison in these circumstances might undo all the good that has occurred in the last year or so.

He, of course, will have to understand that a sentence of imprisonment and a reasonably substantial sentence of imprisonment will be hanging over him during the period of his probation, and I propose to make that a relatively lengthy period.

I take into account what I have already mentioned that although I have no doubt at all that he was trading in heroin, that basically he was obtaining heroin for his own use and trading in it for the purpose of attempting to maintain his own habit.	I don't place him in the same category of those who trade for great profit, and it's fairly obvious that he was not doing that.	But that is not to say that I do not look with abhorrence upon the sort of trade he was engaged in, and I hope that he understands exactly the sort of wreckage of human lives which occurs from the use of this substance.

No doubt he has seen more than any of us just what it does to people.

In the event, therefore, I propose to accede to the suggestion of Mr. O'Leary, realising that I am doing something unusual and hoping that the accused will repay the trust I and the community are reposing in him.
However, I consider that from the point of view of the reformative aspect of the accused this is important; from the point of view of good of the community it would be better if this man were reformed outside the prison and were to become a useful member forthwith.

From the point of view of deterrence, I think I make it perfectly clear that this is unusual and the sentence I impose will still be a substantial one, so that the accused need be under no illusions that if he does not behave himself he will not (sic) be facing a substantial sentence.	In my view, taking all of these factors into account, I should take the course which I now take."

Quite apart from the inherent seriousness of the present offence, it is of vital importance from the viewpoint of the community at large, as well as from that of the respondent himself, to examine his response to leniency accorded to him in the past.	Omitting a variety of relatively minor offences, the respondent's criminal record reveals that on 24 September 1975 he was sentenced by this Court to 15 months' imprisonment with a non-parole period of
10 months for the offence of break, enter and steal.	On 27 April 1977 he was sentenced by the Darwin Court of Summary Jurisdiction to 4 months' imprisonment which was suspended upon his entering into a $50 good behaviour bond for 2 years, for the illegal use of a motor vehicle.	On 11 August 1978 he breached this bond following a conviction for unlawful possession and his security of $50 was forfeited.
Then followed his South Australian conviction on 18 January

1982 for possession of heroin for trade and	his sentence of
3 years' imprisonment, which was not suspended.	On 20 June
1986 the respondent was convicted by the Darwin Court of Summary Jurisdiction on 2 counts of possessing cannabis for which he was fined $500 and $100 respectively and of a charge of using cannabis for which he was released on a good behaviour bond of $200 for 6 months.	Although His Honour did not expressly say so, the respondent, by admitting the present offence, was in breach of that good behaviour bond. Thus the respondent has breached the only two bonds ever given to him, the last, for a drug-related offence,	less than two months afterwards.

In view of the respondent's criminal history, can it be said that the learned trial judge, in suspending the head sentence, has placed undue reliance upon the reformative or rehabilitative as opposed to the punitive and deterrent aspects of the sentencing process as to constitute manifest error on his part?

As I see it, it is necessary to trace the history of Crown appeals against sentence and to discern from the authorities the principles to be applied and the application of those principles to this appeal.

The principles themselves are now well established.
They were expounded in R v Tait & Bartley (1979) 24 A.L.R.

473 by the Full Court of the Federal Court of Australia constituted by Brennan, Deane and Gallop JJ. on appeal from a single Judge of this Court when the Federal Court constituted the Appellate Court of the Supreme Court of the Northern Territory under ss.24(1)(b) and 28(5) of the Federal Court of Australia Act 1976 (Com.).	Although the
principles have been cited in many cases since, I think it
is appropriate to re-state them for the guidance of appellants generally who might come before the Court of

Criminal Appeal of the Northern Territory. Full Court said:-

At page 476 the

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive.	It interferes only if it be shown 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 (see generally, Skinner v R (1913) 16 CLR 336 at 339-40;	R v Withers (1925) 25 SR (NSW)
382 at 394;	Whittaker v R (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1 at 15-17).

Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence.
Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ, Peel v R (1971) 125 CLR 447 at 452; [1972]
ALR 231 at 233).	A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J, Whittaker v R, supra at 248).	The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence.
It was first in jeopardy before the sentencing court.

It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error.		The Crown has been said not to be concerned with the sentence (see, eg Lawrence Jin	Paprika Ltd v Board of Trade [1944] 1 All ER 372 at 374; [1944] 1 KB 327 at 332), but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined.		It remains true that the Crown is required to make its submissions as to sentence fairly and in an evenhanded manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence.		The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it.	If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred.		The Crown is under a duty to assist the court to avoid appealable error.	The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it.	A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal.	It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court.
As McClemens CJ at CL said in R v Jacornbe, delivering the judgment of the New South Wales Court of Criminal Appeal (19 December 1974, unreported):' ••. we would not seem to encourage any system which meant that cases were brought here under s SD of the Criminal Appeal Act on bases which were not argued before the judge below.'"

The Full Court of the Federal Court of Australia constituted by Brennan, Gallop and Lockhart JJ., in R v Prindable (1979) 23 A.L.R. 665, in a Crown appeal against the suspended sentence on four counts of shooting police

with intent to resist or prevent lawful apprehension, in a joint judgment, held that while the head sentences, the non-parole periods and the order that the sentences be served concurrently were not inadequate, the result of the decision to suspend sentence was to produce a sentence so lenient that it did not accord with the general moral sense
of the community and so lenient that it was unlikely to be a sufficient deterrent to others;	and that the error in the sentence was manifest by the very suspension of the order of imprisonment.	Their Honours said at page 669:-

"Though noting that a long sentence of imprisonment was merited by the offences themselves, he (His Honour) was concerned - and rightly concerned - to determine whether the prospects of rehabilitating the respondent could be met by suspending the sentence upon which he had resolved.		He said:	'My anxiety has been to determine whether my duty to the community to impose sentences which may operate as a deterrent to those who are tempted to commit such crimes - crimes of this nature - whether that duty enables me to give you one final chance.	Rightly or wrongly this I have decided to do, and I only trust you realize that if you should ever offend again you will not receive another opportunity and you are likely to spend a long, long time in custody'.		The review by an appellate court of a sentencing judge's discretion to suspend sentence involves the same principles as a review of the judicial discretion to impose the head sentence itself:	see R v Shueard (1972) 4 S.A.S.R. 36 at 43.	If the sentence as a whole is seen to be so disproportionate to the sentence which the circumstances require as to indicate an error of principle the appellate court should intervene.

The result of his Honour's decision to suspend the sentences was, in our view, to produce a sentence so lenient that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deterrent to others:	see per Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554; Channon v R (1978) 20 ALR 1 at 5.

There was therefore an error of principle in his Honour's sentence and it thus becomes our duty to fix the sentence which we think appropriate.	'In the circumstances' as Smithers J. said in Anderson v R (1977) 19 ALR 212 at 221, 'one is required to consider what sentence would represent the appropriate duly proportioned and properly balanced sentence'.		Such a sentence must accord with the general moral sense of the community and be a deterrent to others who may be tempted to engage in crimes of violence.	The error in his Honour's sentence was manifested by the suspension of the order of imprisonment and it can be remedied by omitting from the order that part of his Honour's order which suspended the order of imprisonment.		In the result, we think that the appropriate order should require the respondent to undergo a custodial sentence
of four years, with a minimum non-parole period of 18 months."

In R v Valentini and Garvie (1980) 2 A.Crim.R 170, the Full Court of the Federal Court of Australia, constituted by Bowen C.J., Muirhead and Evatt JJ., expressed a more liberal approach in relation to suspended sentences in the circumstances of that case.	The Full Court at page
175 said:-

"On the question of general deterrence and retribution, the sentences imposed were sentences of imprisonment although they were suspended.	Such a sentence carries the usual consequences for the respondent's record and future (see Elliott v Harris (No. 2) (1976) 13 S.A.S.R. 516).	If a respondent commits a breach of his recognisance at any time during its currency he may be brought back and sentenced under the Criminal Law (Conditional Release of Offenders) Ordinance, s.6 to a term not exceeding the head sentences imposed upon him. The fact that the nature of such a sentence is sometimes publicly misunderstood and, at times underrated, does not seem to be a proper ground for increasing it."

In that case the respondents had pleaded guilty to charges of armed robbery and shooting with intent and were each sentenced to 2 years' imprisonment on each count to be served concurrently;	and each sentence was suspended on terms.	But each respondent had no previous convictions and a large volume of character evidence was given in relation to both respondents.

On the same day that Valentini (supra) was decided, Bowen C.J., Muirhead and Evatt JJ. in The Queen v Davey (1980) F.L.R. 57, dismissed the Crown appeal against a sentence of three years' imprisonment for manslaughter which was suspended pursuant to the
Criminal Law (Conditional Release of Offenders) Ordinance (the forerunner of the relevant Act now in force in the Territory).	Muirhead J., after making some observations as to the principles and practices of Crown appeals to the Federal Court on the ground that sentences are inadequate, said at p.64:-

"In considering such appeals it must not be overlooked that the judge at first instance has generally had very adequate opportunity of considering the facts, the submissions and the reports before him, not in vacua as it were, but in a situation which enables him to measure the reports against the man he sees in his court.	The prospects of rehabilitation, the likelihood of
re-offending, the probable reactions of the prisoner to probation orders and the like are important issues.
The judge at first instance has a peculiar advantage in deciding them, an advantage which in the past the law has recognized.	It is vital, in my view, that the factors of 'double jeopardy', and the advantages and responsibilities of the sentencing judge should be carefully heeded by this Court in determination of appeals against leniency.

In the absence of well-demonstrated mistake, only in compelling cases (e..g. R v Cuthbert (1967) 86 W.N. (Pt
(N.S.W.) 272) should appellate courts increase sentences imposed in the exercise of the judicial discretion.

I say this for the following reasons.	One finds in the cases referred to, references to the 'moral sense of the community', to 'condign punishment' and references which appear to draw a contrast between 'rehabilitation' of an offender and 'deterrence'.	There are references derived from R v Radich [1954] N.Z.L.R. 86 to sentences which are 'weakly merciful'.		There has, of course, been much debate academic and judicial as to the

purposes of punishment, the effectiveness or otherwise of deterrence, the necessity for punishment, the concept of retribution.	One would glean from some sources that there are two conflicting responsibilities vested in a sentencing judge - one owed to the prisoner, to rehabilitate him, to treat him gently as it were - the other owed to society, to punish, to levy retribution, to deter.	And the cases I have referred to suggest that error was demonstrated because of the emphasis on rehabilitation rather than punishment or deterrence.
It is important that the law does not become confused in its objectives.	The purpose of the criminal law is to bring wrongdoers to justice for the protection of the community.	First and foremost, it is the protection
of the community a sentencing judge must bear in mind  (R v Cuthbert per Herron C.J. (1967) 86 W.N. (Pt.l) (N.S.W.) at p.274.)	There are occasions when a judge determines he can only extend that protection by severe punishment;		there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner, but because they may be productive of reformation which offers the greatest protection to society.	I am afraid, and I speak for myself, that the concept of the penitent prisoner emerging from the penitentiary has rare validity.	A sentencing judge has to bear in mind the realities of prisons, of what is learned there, of the
associations there formed, of the effect on many people. Nor should he lose sight of the fact that the main problem of the police and the community is the recidivist.	If in the proper exercise of his discretion he can devise a sentence which will minimize the risk that an individual will re-offend then to that extent society is protected.	And I would add that there is no person so likely to become, not only bewildered, but embittered, as a person who has been sent back to his work and his family under
probation by the judge he has seen considering his  case, only to find himself rearrested to serve a custodial sentence imposed elsewhere, a sentence he will not regard as just.	Respect for the law is very much at risk under such circumstances.	(My emphasis throughout)
Where the issues are not only the protection of the community but the liberty of the subject, it seems to me that the assessment of the trial judge who has seen and so often heard the prisoner, who has had the opportunity of determining his probable responses in the future should be set aside only when manifest error is well demonstrated.	It must not be forgotten that in this area judicial views on the appropriate sentence are almost bound to be at variance in any event."

Some general remarks which have found favour with other Courts in Australia in relation to Crown appeals are those of King C.J. who, as a member of the Court of Criminal Appeal along with White and Cox JJ. in R v Osenkowski (1982)
5 A.Crim.R. 394, said:-

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.	There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.
There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost  intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.	The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

At page 396 Cox J. had this to say:-

"In a consideration of the proper penalty for heroin dealing, or for kindred offences, certain matters require special emphasis.	The distribution of heroin in Australia depends upon the maintaining of a chain of dealers, large and small, that extends from the people who import it into the country to the consumers at the end of the line.	It follows that the contribution to the degradation and eventual destruction of human lives that is made by even a small-scale dealer, must not be underrated.		The problem of hard drug addiction is widespread and there is no evidence that it is diminishing.			Its effects are devastating, and include the motivation for other serious crimes such as armed robberies.	The detection of offences is difficult and sometimes dangerous.	The seriousness with which parliament regards offences involving drugs such as heroin is indicated by the massive penalties it has prescribed for those who are convicted of them.	There is no need to dilate upon these matters.	They have

been discussed many times before, and I mention them only because they provide the setting against which the activities of the respondent are to be judged.	Of course, there must also be taken into account any considerations of a mitigating kind that are personal to the respondent himself, but in this type of case the deterrent aspects of sentencing will generally speaking, predominate."

In yet another appeal against sentence from a single Judge of the Supreme Court of the Northern Territory, the Full Court of the Federal Court of Australia, constituted by Woodward, Neaves and Beaumont JJ. in
R v Molina (1984) 13 A.Crim.R. 76 said at page 77:-

"It must be remembered that the ultimate purpose of all punishment is the protection of society.	It will often be in the best interests of society if emphasis is put on rehabilitation, particularly in cases where the offender can genuinely be said to be at the crossroads between a useless, drug-ridden and probably criminal existence and a relatively normal life in society, supported by a caring family:	see Davey (1980) 2 A.Crim.R. 255 at 260-261 and Channon (1978) 33 F.L.R.
433 at 437."

A case on which counsel for the Crown relied is a decision of the Court of Criminal Appeal of Western Australia in Jenkins v The Queen (1986) 20 A.Crim.R. 56.
There Burt C.J. said at page 58:-

"All of these considerations have led me to conclude that for an offence such as this committed by an addict, unless the risk to the community by her presence within it while addicted can be avoided, a custodial sentence is inevitable and to give proper reflection to the seriousness of the offence and to the idea of general deterrence the head sentence should be substantial.	At the same time the sentence should provide for and create the maximum chance for rehabilitation of the offender.
Whether that can be achieved and if it can be, and when it will be, will never be known to the sentencing judge.

He cannot make that prognosis.		Should it be achieved, then a reasonable time in custody having been served by way of personal punishment, and the risk to the community having been removed, there is then no point in continuing the imprisonment.	The interest of the community is best served by then releasing the prisoner to serve the balance of her sentence in the community under supervision;	such supervision as the Parole Board when the time arrives considers to be appropriate.

For these reasons I think that in cases of this kind the minimum term should be comparatively - that is to say, relatively to the head sentence - short.	In this case the medical prognosis is most encouraging.		It may not be realised in fact.	On the other hand, it may be, and if it is so that one can with some confidence find it to be the fact that the applicant is cured of her addiction
- and that will be a question for the probation authorities to consider and to answer - then I think that nine months in custody would be a sufficient sentence to be served by way of punishment.	Being of that opinion, I would not interfere with the head sentence but I would reduce the minimum term from eighteen months to nine months."

It will be observed that the learned Chief Justice qualified his prefatory remarks by saying that "unless a
risk to the community by her presence within it while addicted can be avoided,	n	This qualification would appear to be satisfied in the present case, having regard to the learned trial judge's assessment of Mr. O'Leary's
evidence.

After a great deal of anxious consideration of the competing viewpoints which emerge from these decisions, as well as others cited by the Crown, I have come to the conclusion that the learned trial judge's exercise of his discretion to suspend the head sentence, did not constitute manifest error on his part in the very exceptional circumstances of this case.

I would accordingly dismiss the appeal.

ANNEXURE

The Presiding Judge, Supreme Court Building, Mitchell St.,
DARWIN 5790

Re:	PETER DAVID HOGON
D.O.B. 14/9/53 age: 33 yrs.

Your Honour,
Mr Hogon was admitted to Banyan House on 12/8/86 when he was bailed here by the Darwin Magistrates Court so an assessment could be made as to his suitability to undertake our rehabilitation program.	He has now resided here for 325 days.
During his time here, Mr Hogan has experienced only one major setback.	This occurred during Easter of this year, when he was charged with driving whilst his B.A.L. exceeded .08%.	He was subsequently dealt with in the Darwin Magistrates Court where he received a fine of $400 and a driver's licence suspension for a period of six months.
Banyan House rules state that all residents who are allowed to drink must remain under the legal driving limit at all times whether driving or not.	As a consequence for this breach of House rules, Mr Hogon's leave and privileges were suspended for a period of six weeks.	It must be stated here that he bore this penalty in a most appropriate manner.

Mr Hogon had decided early on he would make the most of his time here.	From many conversations with Mr Hogon, he has made it clear that he is tired of drugs, his associates in the scene and the consequences he has received over the years for his activities.
It is expected that all residents take part in a: course; sport and community work.	Mr Hogon has made the most of all these opportunities offered by the programme. He has undertaken two courses successfully.	One was a St John's Ambulance first aid course, which he completed and received a certificate for.	The second was a course in coastal navigation, which he recently completed.	He took part in the voluntary work component of this programme, by
working as a gardener, at the Migrant Resourse (sic)· Centre. They reported that they were very happy with his work.	For

his sport, he has taken part in Gym, swimming and yoga for a short period.	Mr Hogon has participated fully in the above three activity areas of this programme, gaining skills and increasing his level of fitness.

As for in-house activities, Mr Hogon has been involved in both the Maintenence (sic) and domestic units and has been leader of both for a period.	On all occasions he worked efficiently and often did more than was expected of him.	The only real problem he had as a unit leader, was that he tended to do the work himself, instead of delegating the tasks as is expected.	He did, however, learn to do this in time.

In many ways Mr Hogon's treatment was not difficult to administer.	During his time here he was able to grasp the true meaning and point behind most programme activities and expectations, without the staff having to go into lengthy explanations.	This man has proved himself very level headed.

Over the past six months, Banyan House has had some very difficult residents and situations to deal with.	Mr Hogon came through all these with the same positive attitude.	He was not afraid of letting other residents know that as far as he was concerned he was doing this programme as it is set down and that he expected others to do the same, while they were here.	This caused Mr Hogon to experience some uncomfortable and lonely periods at times, as many of those residents would have little to do with him. However, he did not let this worry him and kept on with his programme and to his credit he has remained a resident and progressed where others have been discharged.

Mr Hogon has now reached the highest level in the programme.	This is level four and the time when the resident is shortly to return to living back in the community.	At this level the resident is preparing for, a place to live, thinking about associates and in general starting to put into practise what they have learned, during their residency.	He has been a strong upper level, always making sure that new residents understood what was expected of them and helping them out when necessary.	In my opinion Mr Hogon will continue to do well, as he has been enjoying his new drug free life style.	He has a full time casual job at Northbrick Industries, which he hopes will become permanent.	Fortunately, Mr Hogon's family live in Darwin and he has a good relationship with them.	He also claims to have some drug free acquaintances.

From getting to know this man, during the time he has spent at Banyan House, the staff feel Mr Hogon has a good prognosis and an excellent chance of remaining drug free in the future.

I would suggest that Mr Hogon, have conditions with Probation and Parole or ourselves, for a period to reinforce that he maintains his drug free status.	This is important as the initial period of time away from treatment can be hazardous.

In conclusion, I would like to say that Mr Hogon has taken part in our programme fully and on most occasions with maximum effort.	He has proven himself an asset to Banyan House on more than one occasion.

Yours Faithfully (Signature)
Anthony O'Leary Director