LY Ny IN THE FEDERAL COURT OF AUSTRALIA ) '----- come ) GENERAL DIVISION ) ) NTG 1 of 1978 NORTHERN TERRITORY OT AUSTRALIA ) ) REGISTRY } ON APPEAL FROM THE SUPREML COURT OF THE NORTHERN TERRITORY OF AUSTRALTA BETWEEN: THE QUEFN Appellens AND: RUSSELL HOWARD FIRTH Respondent (De!endant) JUDGES MAKING ORDER: Brennan, Deane and Gallop JJ DATE OF ORDER. lst March, 1979. WHERE MADE. Sydney THE COURT ORDERS THAT 1. That the appeal be dismissed. 2. That the appellant pay the respondent's costs. taacd. IN THE FEDNRAL COURT Ol AUSTRALIA ) * GENERAL DIVISION NTG 1 of 1978 NORTHERN TERRITORY OF AUSTRALIA Nat Ne a er REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN 'WRRI TORY OF AUSTRALIA BETWEEN: 'TIE QUDEN Appellant AND RUSSELI, FOWARD FIRY Respondent (Defendant) CORAM. Brennan, Deane and Gallop JJ. ist March, 1979. REASONS FOR JUDGMENT BRONNAN J. I agree with his Honour Mr. Justice Deanc in the conclusion which he has reached and in his reasons for reaching 11. I would add a few observations. Whether s.20A of the Crimes Act 1914 furnished the Crown with the opportunity of secking a variation of the conditions of the recognizance or net, it would require eroerd evreimstanes> in meyer t oan viterference hh, i} hos Cuurl with the conditions vo a revoguléanee granted ten monks ago, especially where the interference 18 sought by the Crown as appellant. w No special circumstances appear, for a mere error does not constitute special circumstances. Clearly, a condition could not be imposed retrospectively if its effect were to work a liability to forfeiture even though the offender had done nothing which was in breach of the recognizance at the time it was done. And if it be suggested that the recognazans should be prospectively varied, that application cannot be entertained after the cxpiration of almost half of the recog- nizance period. The delay and the nature of the variation sought combine to show that the interference of this Court in its appellate jurisdiction 1s not warranted. I certify thet th=s anatie One > preceding pace} ee a's ee ef the Reasons for cuagrent jeri ¢ f hss Honour Mr. Justice Batrnaw gla HM. AM! otbeshe Associate ! Dated: w- 3- 74 IN THE FUDERAT, COURT OF AUSTRALIA GENERAL DIVISION NTG 1 of 1978 REGISTRY at Nat Nat Nee Nat Net et ON APPEAT. FROM TUE SUPREME COURT OF THE NORTHERN TERRITORY OF Alls TALIA BETWEEN: THE QUEEN Appellant AND: RUSSILL NOWARD FIRTIT Respondent (Nefendant, & CORAM: Brennan, Deane and Gallop JJ. 1st March, 1979. REASONS FOR JUDGMENT N DEANT. J° This is an oppeal by the Crown against sentence. The respondent, Russel] Howard Firth, pleaded guilty an the Supreme Court of the Northern Territory to two offenses against the provisions of s.233B(1)(b) of the Customs Act i901. The first offence related to the impurtation by the responden' of G2 grams of heroin. The second offence related to the amportation of 8.7 grams of cannibas. Both offences arose 1 eet or db yy de tie ae Tt oo stbradie., 4 Jearned Judse at farst tunstance (Tooher J.). pursuant to the provisions of s.20(1) of the Crimes Act 1914, released the respondent without passing senience upon his entering into a recognizance in the sum of $2000 to be of good behaviour for two years subject to certain specified conditions. Section 233B(1)(b) of the Customs Act -1901 provides that any person who imports into Australia any prohibited imports to which the section applies shall be guilty of an offence against that Act. Heroin and cannibas are prohipited imports to which s.233B applies. The maximum penalty pre- scribed by the section for an offence against 118s provisions is two years imprisonment and a fine of $2000. The essential facts of the offences can be bricfly stated. The respondent, on 30 September, 1977, reivurned to Darwin after an absence from the Northern Territory of approx- imately ten days. He travelled by air from Singapore. Conceuled upon his person were packages containing the quantities of the drugs which have already been mentioned. On entry, he made a statement that he was not in possession of any prohibited import. Search disclosed the drugs which he carried. He franli- admitted the facts which constituted the offences with which he was charged and to which he subsequently pleaded guilty. The ofienees were not unpremeditated. The purpose of the respondent's overseas trip was to purchase the heroin whicn he allegally imported. The eo ures Jyrch th 7 ee Tal hottowe d, ay OL Peledasing the respondent «.lv.oul passing, sentenec upon his entering into a recognizance in the sum of $2000 was one were ere ee ees which wouJd not be justified in the ordinary case of importing the quantity of heroin which the respondent imported. 'The case was not however the ordinary case. It is not suggested by the Crown that there 1s any basis for disturbing the finding of the learned Judge at first instance that the offences to which the respondent pleaded guilty were not committed for purposes related to the sale of, or other dealing in, either of the drugs to which the oflences related. The cannabis which the respondent imported was below the trafficable quantity. The heroin, on the material before the learned Judge at first instance and on his uncontested finding, was for the respondent's own usc. The respondent, who was 25 years old at the time of the offences, had no previous convictions and was supported by impressive references to his general character. Other material relevant to the appropriate sentence to be imposcd upon the respondent and which 1s favourable to him has hbecn placed before this Court in the terms in which 1t was, hy consent, taken into account by the learned Judge. At the time he commiticd the offences the respondent was a drug acidiel. In that lies the explanation of - albeit not an excuse jor - his first recorded conflict with the law. ' The evidence before the learned Judge was that, sinew Vhe Cuma ode ol the © oo Neen, Lhe respondent wate sud significant steps» tosards conquering his uwddaction aud towns his own rehabilitation. He had voluntarily had himself admitted to Banyan House, a drug rehabilitation centre, where he had remained drug free from the time of his admission on 16 January 1978 to the timc of his sentence on J1 April 1978 and had reached the stage at which he was assuming responsibility for the care of newer admittces to the centre. Evidence was given that 1f the respondent completed the course at Banyan House he would be asked by the authoritics there to remain as a counsellor The material before the learned Judge warranted the cuonciusion which he reached that there was an cxcelléenl prospect uf the respondent's complete rehabilitation if released on a recognia- ance subject to conditions and that the prospects of such rehabilitation would be greatly lessened 1f a term of imprison- ment was imposed. In the circumstances, the Crown has failed to show that there 1S any warrant for interfering with the learned Judge's decision to release the respondent upon recognizance pursuant to the provisions of s.20(1) of the Crimes Act 1914. It was submitted on behalf of the Crown that even if the Court were of the view that the decision of the learned Judge not to impose a sentence of imprisonment should not be disturbed, the conditions upon which the respondent was relcssedu were unsatisfactory and inadcaquate I can sce considerable force in that submission. The conditions which the Jeatned Judge imposed required the respondent to report within iorty erebtu hour, of cnterime ont tt ceri tee toa g Prt - Of ticer, obey toate Probutron C1. asect's rearoueble and wou directions as to employment, accommodation and reporting and to notify that Probation Ofjicer within twenty four hours of "any change of address or employment. In my view, 1t would have been preferable if the learned Judge had imposed conditions specifically designed to ensure that the respondent, as a condition of his release, continucd for at Least some period upon the course of treatment for his addiction upon which he had embarked. There are a number of ways in which such a condition can be framed (sce, for example, R. v. Weaver (1973) 6 S.A.8.R. 265 at p. 268). In all the circumstances of the prescnt matter, including the Japse of time since the respordent was sentenced, I do not, however, consider it appropriate to interfere, for that reason, with the sentence which the learned Judge imposed. I would add that if I had heen othervise of the vicw that there were grounds for interfering with the senlence which was imposed upon the respondent, a serious question would nave arisen as to whether the inexcusable and largely unexplained delay between the institution of this appeal and the taking of steps to have 1t lasted for hearing before us would have, in any event, precluded the imposition of a sentence of impriso- ment at this stage. It was suggested that part of the cause of that deJay related to the preparation of appeal books. Lest there should be any misapprehension on the question among practitioners in the Northern Territory, 1t should be clearly stated that, while 1t 1s expected that legal advisers charged with the duty of preparing appeal books should discnarge that wo Choa ett yo the Moet eo owoat pedis to enrrre ! ' procedural requirements neitber prevent the vapeditious, dis- posal of appeals to this Court nor are the cause of any " unnecessary hardship or expense, — ' } Toertafy that this and the fle preceding pages are a true cory of the Reasons for Judgment herein cofh s Honour My. Justice lene * (Ad WC pest Associate ated: - 3- 7Q | IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NORTHERN TERRITORY OF AUSTRALIA NTG 1 of 1978 Nee et Na Ne See Bee ee REGISTRY ON APPEAL, FROW THE SUPREME COURT OF THY NORTHERN TORRTTORY OF AUSTRATIA BETWEEN: THE QULEN Appeljant AND: RUSSELL HOWARD FUIRTU Respondent (Defendant) CORAM: Brennan, Deane and Gallop JJ. ist March, 1979. REASONS TOR JUDGALNT GALLOP J. I agree. I only wish to add a few remorh-~ concerning the terms of the recognizance in this case It was contended by the appellant that the terms of the recognizance ordered by his Honour were inappropriate and insufiiciently rigid to achieve reformation of the respondent In reply the respondent contended that the appellant need nol have resorted to appeal in order to achicve such an objective wie oul wonceding that the recur ilvaa ce was Tuadequate an Lh Yenpects andicated, and the rospondent referred to the pores to vary the recognizance provided by s.20A of the Crimes Act 1914, TOI Spe meer ei er EE Rg Tene eremreee may cones " The appellant argued that s.20A was not designed for , use in circumstances where the penalty looked at as a whole was inadequate in all the circumstances and the appropriate course is for the Crown to seek an adequate penalty by resort to the right of appeal, which penalty may be a recognizance containing more rigid conditions or some more severe penalty; such as a custodial sentence. I think s.20A would have provided a remedy for the Crown in the present case. But it is indeed more appropriate for the Crown to exercise its right of appeal where 1¢t wishes a review of the penalty on the grounis of inadequacy and not merely a variation of the terms of a recognizance originally regarded as appropriate by way of pemalty, but Tater neoding review in the light of supervening erents. However it is difficult for an appcllate court to devise the appropriate tcorms of a recognizance unless guide? the whole way by evidence and the Crown's delay in facailititicc the hearing of this appeal virtually excludes re~consideration of the terms in this case. —_—_— I certify that thisand the One | preceding japeX are 6 true copy of the ;Neasons for Judgment herein of his Honour , Mr. Justice fr" 7 y ; vo ae PIS ABSOSCEELG VA Dated: ys. 3-74