FEJO v ILETT WILTON v ILETT

Supreme Court of the Northern Territory of Australia Asche CJ
26 February 1991 at Darwin

APPEAL - Justices' Appeal - appeal against severity of sentence - offences under Misuse of Drugs Act

APPEAL - Justices' Appeal - Misuse of Drugs Act - formulation of charge in the case of Schedule 2 substances ss. 5 and 9 - penalty guidelines - s.37 - more stringent approach in sentencing under new legislation

Statutes referred to:
Misuse of Drugs Act (1990) NT
Poisons & Dangerous Drugs Act (1987) NT

Counsel for Appellants:	S. Wells
Solicitors for Appellants:	NT Legal Aid Commission Counsel for Respondent:	S. Nish
Solicitor for Respondent:	Director of Public Prosecutions

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IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 39 of 1991	In the matter of the JUSTICES ACT

BETWEEN:
WILLIAM JOSEPH FEJO
Appellant AND: ROGER JOHN ILETT
Respondent

No. 41 of 1991

BETWEEN:
STANLEY LUNGUY WILTON
Appellant
AND: ROGER JOHN ILETT
Respondent

CORAM:	Asche CJ

REASONS FOR JUDGMENT
(Delivered 26 February 1991)

I have before me two appeals and they have been dealt with together because there are some general principles arising out of the interpretation of the Misuse of Drugs Act which have been raised in both cases.	In each case I will deal with those general matters, but individually there seem to be some differences, and I will try also to treat these in their individual circumstances.

I deal, therefore, first with the case of Fejo.	On
22 January 1991 this appellant pleaded guilty to four charges under the Misuse of Drugs Act, which had commenced on 1 November 1990.	That Act replaced the Poisons and Dangerous Drugs Act of 1987 and the effect of the new Act was one of the matters which was raised before me.

I think it important, therefore, to set out, with some particularity, exactly what was charged against the appellant and to point out the maximum penalties now applying under the new Act.

The first charge to which the appellant pleaded guilty was that he did unlawfully cultivate a prohibited plant, namely cannabis, and the number of prohibited plants amount to a traffickable quantity.	In fact the number of plants involved here is six.

Now, there is no doubt under the Act that a cannabis plant is a prohibited plant.	Traffickable quantity is defined in Schedule 2 of the Act and, so far as
relates to "cannabis plant", traffickable quantity is given as "not less than 5 nor more than 19 plants", so that it can be seen that the appellant came just inside the definition of traffickable quantity.

The more serious category of "commercial quantity" is constituted by "not less than 20 plants", and it is not suggested that the appellant was in that category.	Now, if the appellant is convicted of the "traffickable quantity" charge then he is convicted under s.7 and the penalty depends upon the number of prohibited plants and the maximum penalty laid down would be:

"Where the number of prohibited plants in respect of which the person is convicted is a traffickable quantity of the plant - imprisonment for 7 years."

So that the maximum imprisonment of this offence is seven years.

The second charge is that the accused did unlawfully supply a dangerous drug to another person and the dangerous drug is specified in Schedule 2.

That charge does not allege that the amount of the dangerous drug was in traffickable quantity and the maximum penalty, therefore, comes under s.S and is governed by one of the categories therein set out; namely s.S{a){iv),

"Where the dangerous drug is a dangerous drug specified in Schedule 2 and subparagraph {iii) does not apply."

Subparagraph (iii) does not apply here, nor do
sub-paragraphs (i) and (ii).	So that the maximum penalty is
$10,000 or imprisonment for 5 years.

The next charge is that the appellant did unlawfully possess a dangerous drug, and the dangerous drug is specified in Schedule 2, and the amount of dangerous drug is a traffickable quantity.	That charge comes from s.9 and, if the dangerous drug was a traffickable quantity, the maximum penalty is a fine of $10,000 or imprisonment for five years.

Now, as to that charge, it appears to me - and, I think, that counsel agree with me on this - that there was some confusion.	When one looks at the material before the learned Stipendiary Magistrate, the prosecutor in describing the various offences says in respect of this that: "A search of the defendant's room (inaudible) a container containing
3.2 grams of cannabis seed".

I think, what is meant there is that, in a search of the defendant's room, a container containing 3.2 grams of cannabis seeds was discovered.

Now, in order to prove that the cannabis - which in this case consisted of the seeds - was of traffickable quantity, one has to go back to Schedule 2 and one notices,

of course, that there is no mention of seeds.	Mention is made of cannabis leaf, cannabis oil and cannabis plant.

When the definition "dangerous drug" in s.3, the interpretation section, is examined, these words appear, inter alia:

" 'Dangerous drug' means a substance or thing specified in Schedule 1 or 2 or, where the substance or thing so specified is a prohibited plant, any part of the plant, being a part not specified in Schedule 1 or 2, from which a substance or thing referred to in Schedule 1 or 2 can be extracted or obtained."

I think it is proper to assume that cannabis can be obtained from seeds and that cannabis seed is part of a plant or part of the plant, and is "a part not specified".

But in order to bring it within Schedule 2 it must be established that there are not less than 5 nor more than
19 plants.	Even if one took the view - and I think Mr Nish is correct that one is entitled to take the view - that even one seed can be treated as part of a plant, nevertheless there is no evidence before the court as to how many seeds were found in the defendant's room.

There is a reference to the weight of the seeds, and I think the amount is 3.2 grams, and although one might very properly assume that 3.2 grams of seeds would be

considerably more than 5 seeds and indeed may be considerably more than 20 seeds, thereby bringing the matter into the commercial quantity class, that is not so stated by the charge and the appellant in my view - and this being a criminal matter - is entitled to have the charge properly particularised.	Where the particulars alleged are no more than seeds to the weight of 3.2 grams, it seems to me that that part of the charge which reads "and the amount of dangerous drugs is a traffickable quantity" has not been proved.

There is no doubt - and the appellant admits this - that he did possess a dangerous drug, the dangerous drug being the seeds found in his room, but it does not seem to me that the prosecution have proved that what was found in his room was a traffickable quantity.

Indeed, I am inclined to think that there may have been some confusion in the prosecution which may have led them to consider that the seeds came from the six cannabis plants which the appellant had previously planted and then dug up, and that the prosecution may have, by mistake, allowed that circumstance to creep into the third count.

But that is speculation on my part.	The real gravamen of this is that the prosecution have not proved the second part of the charge but have proved that the appellant

did unlawfully possess a dangerous drug.	So that there will be leave to amend the third charge in the complaint to delete the words "and the amount of dangerous drug is a traffickable quantity".

The fourth charge is that the appellant did administer a dangerous drug to himself; there is no dispute about that and the maximum for that is two years or $2000.

Now, it follows that the appellant faces in one charge a maximum of seven years and that becomes of importance because of the provisions of S.37.	S.37(1), as amended, now reads:

"Aggravating circumstances means, subject to subsection (2): (a) a second or subsequent offence against, (i) this Act or, (ii) a provision of: (A), a law in force in the Territory before the commencement of this Act or, (B) a law of the Commonwealth or a State or another Territory of the Commonwealth (whether the offence was committed before or after the commencement of this Act) which, in the opinion of the court, is the equivalent of or a similar offence to an offence against a provision of this Act.

(b)	an offence against this Act, in circumstances involving a prison or police prison or a prisoner, (within the meaning of the Prisons (Correctional Services) Act) or, (c)	an offence against ss. 5 or
9 coITu itted on or in licensed premises, a school playground, youth centre, video facility or public swimming pool."

Now, pausing there, the first comment one makes is that since that definition of aggravating circumstances is

complete in itself there are a number of circumstances, for instance in s.5 or s.7, which, unless they come within the definition, could not be, in this Act, properly referred to as aggravating circumstances, although they are circumstances which affect the maximum penalty.	one therefore turns to s.37(2), which reads that:

"In sentencing a person for an offence against this Act the court shall, in the case of an offence for which the maximum penalty provided by this Act, with or without a fine, is: {a) 7 years imprisonment or more or, {b), less than 7 years imprisonment but the offence is accompanied by an aggravated circumstance,

impose a sentence requiring the person to serve a term of actual imprisonment unless, having regard to the particular circumstances of the offence or the offenders, including the age of the offender, where the offender has not attained the age of
21 years, it is of the opinion that such a penalty should not be imposed."

Now, it has been put here, on behalf of the appellant, that regard should still be had to various penalties imposed under the Poisons and Dangerous Drugs Act and, furthermore, to the actual sentences imposed by Judges of this court for like offences under the earlier Act.	This being an extempore judgment, is not the time to examine in detail the differences between the two Acts, save to say this: that taken generally the Misuse of Drugs Act seems to clearly impose heavier penalties, albeit that there may be one or two exceptions to that, and indeed some penalties are for life imprisonment, even for a first offence, for instance, s.5(a)(1).

Secondly, the terms of s.37(2) must be examined in that light, i.e. that the Misuse of Drugs Act is evidence of a legislative intent to impose more serious terms for drug offences generally.	It seems to me that s.37(2) rather reverses the rule which applies normally in sentencing procedures, which is that all other alternatives must normally be examined before the ultimate deterrence of a prison sentence.

Under s.37(2) it seems to me that the balance is swung the other way.	The injunction upon the court is that it shall, where the circumstances warrant it, impose a sentence requiring the person to serve a term of actual imprisonment.	So that seems to be the prima facie rule.	If a person comes within the category of s.37(2)(a) or (b) then it seems to me that the intent of the legislature is plain that a sentence of imprisonment should be imposed unless there are particular circumstances.

I turn, therefore, to this appellant, Fejo.	It is plain from what I have already said that on the first charge he comes within s.37(2).	He does not come within s.37(2) on the other three charges.	Now, on his behalf it is said that he is 32; he is married; he lives mainly in Maningrida; he has been in employment in Maningrida but his employment has been in jeopardy recently through no fault of his, mainly because with the loss of two of his relatives he was required to go to Darwin.

He has been on medication, particularly Largactil, and he has been admitted to the Cowdy Ward at the Royal Darwin Hospital four times over the last few years.	He seems to have had persistent headaches and he smoked the cannabis to overcome those headaches, finding that it provided him with some relief.	He grew the cannabis for his own use and, of course, it is a very small scale operation.

He has no prior convictions save for one some years ago for driving with a blood alcohol content exceeding .08. He is a family man with two children and although presently unemployed he is spending his time usefully collecting wood and bark for bark paintings and for the making of artifacts. The learned Stipendiary Magistrate sentenced the appellant to terms of twenty eight days imprisonment for each of the four charges.	I am inclined to think that His Worship was particularly influenced by the fact that there were two charges which, at that time, came within s.37(2), that is the first and third charge.	As I have already set out, the third charge does not now come within that subsection.

Furthermore, it is suggested in the Notice of Appeal that His Worship erred in attaching excessive weight to aspects of general deterrence.	I do not agree with that submission.	It seems to me that His Worship was very properly pointing out the general deterrence expressed particularly by s.37(2).	It was also put that the learned

Stipendiary Magistrate erred in speaking of the incidence of cannabis use in the community of Maningrida.	I say nothing of that because it may well be that His Warship's experience is what His Worship was speaking from and I am not convinced that it is wrong for an experienced Magistrate, knowing through his own knowledge of what passes through his courts every day, what are the problems of the community, not to voice those concerns.

However, it seems to me in this case the particular circumstances - and most particularly, perhaps, the fact that in only one of these charges did the accused come within s.37(2) and then only by the merest minimum, namely, I think, one plant, so that the picture is not as serious as it may seem, and properly have seemed, to the learned Stipendiary Magistrate.

Bearing in mind the personal particulars of the appellant, it seems to me that there is here a sufficient case for particular circumstances under s.37(2).	I emphasise, however, that such particular circumstances will be the exception rather than the rule and that the clear policy of s.37(2) is what I have already set out.		That should be properly understood because it is for that reason that the submission of Mr Wells, as to comparative sentences by individual judges under the Poisons and Dangerous Drugs Act, will have limited value when facing a situation under s.37(2).

I turn therefore to the case of Wilton.	Wilton pleaded guilty to three charges:

That he did unlawfully supply a dangerous drug to another person, and the dangerous drug is specified in Schedule 2;

That he did unlawfully possess in a public place a dangerous drug and the dangerous drug is specified in Schedule 2; and

That he did administer a dangerous drug to himself.

On those three charges the second brings the matter within s.9 and the penalty is a maximum of two years or
$5000.	It is noteworthy that, by reason of the definition of aggravating circumstances now applying to s.37, that it does not come within the category of s.37(2).	The other two charges, that is the first charge, has a maximum of five years or $10,000 or two years or $10,000 if handled summarily, and the third charge has a maximum of two years or $2000.

In this case the learned Stipendiary Magistrate sentenced the appellant to twenty eight days imprisonment, in each case concurrent.	In this case, therefore, one does

not commence, under s.37(2), with any assumption that imprisonment is the most appropriate sentence.

Nevertheless, one considers whether the Magistrate has erred in the exercise of his discretion in imposing these sentences.

It is said on behalf of the appellant that he has a good work record, he is respected in his community, he has co-operated with the police and that, for various reasons, he does not wish to be involved in this sort of offence again.	Nevertheless, this was not an isolated offence or an offence whereby the appellant was growing something for himself and merely using it for himself.

According to the prosecution, the defendant's brother was supplied with a number of cannabis seeds by a Mr Brown.	The defendant's brother took these seeds to his
outstation at Juda Point, planted them in pots and stayed at the outstation and watered them.	The defendant attended at the outstation on several occasions with his brother and watered and cared for the plants.		On these occasions, the defendant, in a vehicle owned by the recreation club of Maningrida, carried the water to the forty or fifty plants growing at the outstation.	He used some cannabis for his personal use.

Then, about August 1990, he helped his brother and Brown, and gave half the cannabis plants so that Brown could take them to another location.		He and his brother - that is, the appellant and his brother - then enclosed the remaining plants in wire mesh and, over the next few months, conveyed the cannabis back into Maningrida where they dried it and rolled it into joints.	The appellant and some friends sold these cigarettes to the local Aborigines at the recreation club, the school grounds, at nighttime for $25 a cigarette.	He made up to $200 a night selling cannabis.

Now, allowing for the fact that the appellant may well have co-operated with the police once he was interviewed, allowing for the fact that the main instigator of these offences was the man Brown, nevertheless, a very plain picture of active participation by the appellant emerges.

When, therefore, one has regard to the difference between the Misuse of Drugs Act and the Poisons and Dangerous Drugs Act, I again am not prepared to accept the submission made by Mr Wells that I should look at or compare or consider some sort of tariff comparable with the Poisons and Dangerous Drugs Act and decisions of the judges under the Act.

Even under that Act it seems to me that a sentence of imprisonment might well have been imposed, but the distinction between the two Acts is plain enough, that the Misuse of Drugs Act requires a more stern approach than the courts were wont under the Poisons and Dangerous Drugs Act.

The grounds of appeal are given:

That the sentences are manifestly excessive.	I cannot agree with that.

That the learned Magistrate erred in attaching excessive weight to aspects of general deterrence.	I cannot agree with that.	It seems to me that His Worship was right to see that a sentence was imposed which made it plain to others that this sort of dealing in drugs, particularly this sort of rather detailed care of plants for the purposes of trading subsequently, must be discouraged.

That the learned Magistrate erred in attaching insufficient weight to the particular circumstances of the offender; I do not consider his Worship did that.	There are, undoubtedly, matters in favour of the appellant, although I should point out that he

is not without a number of prior convictions, although it is true, as Mr Wells points out, that there are no prior convictions in relation to this sort of offence.

That the Magistrate erred in finding that the incidence of cannabis use in the defendant's home community was serious.

I am not sure that His Worship placed too much reliance upon that but, as I have already commented, a comment of that nature made by the Magistrate, in the light of his experience with the community, is not incorrect, as also the comment that there is widespread community concern in Maningrida.

Finally, there is the ground of appeal that the learned Magistrate erred in finding that the defendant assisted on more than one occasion in the cultivation of cannabis at Juda Point, via Maningrida.	Now, Mr Wells has put to the court that he made it plain that the plea of guilty referred to only one occasion in the cultivation, but it seems to me that the appellant clearly knew what was going on and if he did not assist in the cultivation further than Mr Wells' instructions go, it seems, upon what the prosecution said, that he was an active participant in the general scheme and an encourager of the scheme, and it would

appear that he was participating in the selling of the cannabis.	And, again, I think that Mr Wells puts it to me that the appellant got very little of the money which was earned by the sale but that, in my view, does not detract from the fact that it was because of the appellant's efforts that this drug was distributed amongst the community.	In my view, therefore, I can see no error in the application of the discretion of the learned Stipendiary Magistrate.

In a result, therefore, the appeal insofar as the matter of Wilton will be dismissed.	The appeal in the matter of Fejo will be allowed and the sentences will be suspended, but the appellant will be required to enter into a recognizance to be of good behaviour during a period of two years.

I should point out what I have frequently pointed out before, that suspension of sentence does not mean that the sentence will not be served.	If the appellant is in breach of his bond of good behaviour then, plainly enough, he will have to face serving the sentence in each case; and, of course, if he is in breach he will no doubt have to face serving a further sentence for the offence for which he is in breach.

In the case of Fejo, there will be leave to amend the third charge in the complaint of 28 December 1990 to

delete the words "and the amount of dangerous drug is a traffickable quantity".

For Fejo the appeals on sentence are allowed in each case and in lieu of the sentence of imprisonment for twenty eight days in each case the appellant is sentenced to imprisonment for twenty eight days on each charge, such sentences being suspended upon the appellant entering into a bond in his own recognizance of $1000 to be of good behaviour for two years.

I think just in case the matter does come back, I should preserve the distinction which the Magistrate had between what was concurrent and what was cumulative.

The first and second charges are to be cumulative and concurrent with the third and fourth charges.

In the appeal by Wilton, the order will be that the appeal be dismissed.