Ross v Peach [2002] NTSC 19

PARTIES:	ROSS, David Blair

	v

	PEACH, David Nicholas

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	JA66 of 2001

DELIVERED:	28 March 2002

HEARING DATES:	1 March 2002

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

CRIMINAL LAW
Criminal law – appeal – unrepresented defendant – question of fairness to appellant during the proceedings.

Misuse of Drugs Act (1993) NT, s 37(2), s 37(3) and s 37(6)
Browne v Smith (1974) 4 ALR 114, referred to.
Bates v Hayman (1988) 90 FLR 55, referred to.

REPRESENTATION:

Counsel:
	Appellant:	H Spowart
	Respondent:	J Adams

Solicitors:
	Appellant:	NTLAC
	Respondent:	DPP

Judgment category classification:	B
Judgment ID Number:	mar0209
Number of pages:	9

Mar0209

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ross v Peach [2002] NTSC 19
No. JA 66 of 2001

	BETWEEN:

	DAVID BLAIR ROSS
	Appellant

	AND:

	DAVID NICHOLAS PEACH
	Respondent

CORAM:	MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 28 March 2002)

[1]	The appellant appeared before Mr Gillies SM constituting the Court of Summary Jurisdiction at Darwin on 8 November 2001, unrepresented.  When asked by the learned Magistrate at the commencement of the proceedings as to whether he had any objection to his Worship sitting on the case, the appellant replied, “Just get it over with”.  His Worship had the appellant affirm that he wished to plead guilty to the charges, and noting that he was unrepresented, said that it was his duty to endeavour to ascertain that the appellant understood the nature of the charges.  The appellant told his Worship he had had a little bit, but not much legal advice about the matter from a qualified lawyer, but that he did not want to have a solicitor represent him, he wanted to speak for himself.
[2]	His Worship then went through the elements of the charges which were to be put to the appellant.  The first, that he unlawfully cultivated 13 cannabis plants, and the next, that he unlawfully possessed cannabis plant material.  It was pointed out to the appellant that the numbers of plants alleged to have been cultivated amounted to a traffickable quantity under the Misuse of Drugs Act 1990 (NT) for which his Worship said the maximum penalty was seven years imprisonment or $10,000 fine, but said that his jurisdictional limit was imprisonment for up to two years.  
[3]	The charges were put to the appellant, and after having affirmed that he understood the charges that he wished to proceed to plead without a solicitor, he pleaded guilty to each.
[4]	Briefly, the facts alleged by the prosecutor were that at a time after 1 September 2000, the appellant acquired a quantity of hydroponic equipment, set it up in a bedroom at his house with grow lights and the usual paraphernalia, watered, nurtured and cared for cannabis seedlings, and as they matured, transferred them to pots in that room and nurtured and cultivated the plants to maturity.  He is then said to have harvested some of the cannabis leaf which he put into a plastic container in that room.  On 12 December the police executed a search warrant, found the plants and the cannabis plant material, weighing about 29 grams.
[5]	It was then said that the appellant was not present when the warrant was executed, but was later spoken to by police and that he replied, “No comment” to the questions put to him.  The prosecutor said that the potential value of the plants was $1,400 and the cannabis plant material, $500. 
[6]	When the prosecutor had finished, his Worship asked the appellant whether he disputed anything that was said and he replied, “No”.  His Worship proceeded to find the appellant guilty of the offences.
[7]	There was then tendered a record of the appellant’s prior convictions which recorded that he had previously been convicted for drug related matters, firstly in the Deniliquin Local Court, New South Wales, on 18 December 1989 for possessing a prohibited drug, self administering a drug and possessing equipment to administer a drug.  There is no information as to the nature of the drug.  The record also showed that the appellant was sentenced to 28 days imprisonment, which was wholly suspended, when convicted before the Katherine Court of Summary Jurisdiction in October 1997 for possessing a traffickable quantity of a drug.  The nature of that drug was not disclosed either.
[8]	His Worship then turned his attention to the provisions of s 37(6) of the Misuse of Drugs Act providing that if the amount of dangerous drugs to which the offence relates is a traffickable quantity, then the Court is to presume that the person charged intended to supply the dangerous drugs.  The presumption applies unless the contrary is proved, and his Worship explained that it was up to the appellant to prove it.  There was discussion between his Worship and the prosecutor as to whether or not that particular provision operated in the circumstances of this case, and the prosecutor was given the opportunity to consult with senior colleagues.  Upon his return the prosecutor drew attention to my decision in the matter of R v Damaso, unreported, Martin CJ, 23 May 2001, in which it was held that the provision had retrospective operation, but that leave to appeal to the Court of Criminal Appeal had been granted on that point.
[9]	It does not appear that the appellant was given any opportunity to seek advice on that aspect of the case, and the significance which it could have had upon sentencing was not explained. 
[10]	His Worship, in the meantime, had indicated that he regarded the appellant as being, “in big trouble” and “not entitled to much leniency” because of the 28 day suspended sentence.  His Worship proceeded:
“I don’t know what your submissions will be but if you are looking for particular circumstances to see if you can get another suspended gaol sentence, you might be unsuccessful this time.  I don’t know, because I haven’t heard what you’ve got to say, and I don’t know whether or not you’ll give evidence but you’re not entitled to a lot of leniency with that 1997 Katherine prior”.  
The significance of “particular circumstances” was not pointed out.
[11]	After discussion concerning the retrospective operation of s 37(6), his Worship again turned to the appellant and asked if there was anything he had to say in defence of himself.  The appellant said that he did not plan to sell the cannabis, that he had been smoking it for 17 years and could not get enough to satisfy his need.  The appellant added that although he had been found with 13 plants he was only trying to grow seven to maturity, and if successful in that he would have about one month’s supply of cannabis.  There was some discussion between his Worship and the appellant on that point.  The proposition being put by the appellant seemed to be that although he had 13 plants, he only expected seven to grow to the stage where he could harvest some useable cannabis.  The appellant added that one of the reasons he grew the cannabis himself was so that he did not have to buy it and therefore not mix with the criminal element of society.  He drew to his Worship’s attention that he had only one prior conviction since arriving in the Northern Territory five years previously, he was not a violent person, he did not drink alcohol as a rule, but one thing he did do was to smoke cannabis which he acknowledged was illegal.  He started to add that he believed he was a good person and he wished a certain police officer who he knew could be there to back him up.  The appellant went on to tell his Worship that he only had casual employment as a butcher and a person who delivered pizzas at night, earning between $500 and $700 net per week.  The house in which he was living was subject to mortgage, for which the payments were $463 a fortnight, and the money was otherwise expended on an overdraft account to pay off a motor car, credit card and living expenses.  He had no dependents.  His Worship enquired of the appellant as to his family background.  The appellant produced references from employees and sporting clubs for which he was associated.
[12]	Having noted the decision in Damaso, his Worship invited the appellant to give evidence to rebut the presumption.  The invitation was accepted, and his Worship then proceeded to ask the appellant a number of questions which confirm much of what he had said from the bar table as to his occupation, income and expenditure.  His Worship also took the opportunity to ask the appellant a number of questions regarding cultivation of the cannabis.  The appellant said, when asked the purpose for which he cultivated the plants, that it was for his personal use and further questioning by his Worship on the point did not lead to any evidence contrary to the appellant’s assertion.  
[13]	The prosecutor was then invited to ask the appellant questions which were also directed to testing the appellant’s evidence.  The general object of the cross-examination was to try and demonstrate that the amount of cannabis being grown by the appellant was in excess of his personal needs, presumably with a view to casting sufficient doubt upon his evidence that it was for personal use such that the statutory presumption would remain.
[14]	At the conclusion of the searching enquiry of the appellant under oath, his Worship declared himself satisfied that the presumption did not apply, but then added, “That does not get you out of the woods though.  You’ve still got particular circumstances.  Is there anything further you wish to say?”  No explanation was given as to what was meant by that enquiry and its consequences.  The appellant said that he did not.  His Worship then passed to the question of forfeiture of the property seized at the time of the execution of the warrant and proceeded to sentence the appellant.  It will be noted that in the course of addressing the appellant, his Worship twice referred to “particular circumstances”, no doubt bringing to mind the provisions of s 37(2) and s 37(3) of the Misuse of Drugs Act.  It is there provided that in sentencing a person for an offence for which the maximum penalty is seven years imprisonment or more, the Court is to 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 offender, it is of the opinion that such a penalty should not be imposed.  Where a court imposes such a sentence it shall not impose a sentence of less than actual imprisonment for 28 days.  Apart from the passing references to which I have just drawn attention, his Worship did not inform the appellant of the mandatory nature of those provisions absent the alternative circumstances to which reference is made.
[15]	A Court of Summary Jurisdiction has a duty in dealing with unrepresented accused to ensure the accused is properly informed when passing sentence and to ensure the accused understands each stage of the proceedings, Browne v Smith (1974) 4 ALR 114, and Bates v Hayman (1988) 90 FLR 55.  At p 121 in Browne v Smith Muirhead J said:
“… the principle must always prevail that the responsibility of depriving a person of their liberty is a grave one which must be exercised without haste and only after a court is satisfied all reasonable steps have been taken to inform itself of all relevant circumstances and advise a defendant of his position …”.  
The Court should be “painstaking to obtain from both prosecution and the accused those facts and background matters which may be pertinent to the question of sentence”.
[16]	It may be that in the course of the appellant’s own submissions to the court, and the evidence given on oath under examination from the learned Magistrate, that much of the material which might be expected to be put forward in relation to questions of particular circumstances of the offence or the offender have been elicited, but, it cannot be said with certainty that that is the case and, in any event, the appellant was not made aware of the peril in which he stood and thus to reconsider whether or not he wished to “get it over with”.  His mind was not directed to crucial considerations upon which his liberty depended.
[17]	Although there may be a presumption that there is no error on the part of a sentencing tribunal, I am satisfied in this case that there has been.  This is not a matter going to the exercise of a discretion in posing imposition of the sentence itself, it goes to the question of fairness to the appellant during the proceedings leading up to the imposition of the sentence.  In Browne v Smith at p 119 his Honour said:
“I digress to emphasize that every court dealing with a person on a serious charge who is unrepresented by counsel, should be meticulous to ensure the following and should not rely too far upon a defendant’s apparent disinterest or anxiety to have matters over and done with, attitudes not uncommonly encountered in the criminal jurisdiction.”  
His Honour went on that in the interests of justice the court should ensure that the accused person understands the nature of the charge and, where appropriate, the seriousness of the charge and that he understands his right to be represented by counsel, the availability of counsel through legal aid schemes or otherwise, and his right to apply for an adjournment to obtain legal advice.  
[18]	It is not necessary to here again reiterate everything referred to by Muirhead J, but I commend a rereading of Browne v Smith to all those charged with administration of criminal justice when dealing with an unrepresented accused.  They were endorsed in my decision in Bates v Hayman.
[19]	There were other grounds of appeal, but it is unnecessary for me to examine them.  Error has been demonstrated.  The appeal must be allowed and the matter remitted to the Court of Summary Jurisdiction for rehearing before a different Magistrate.
-------------------------------------------