R v Firth [1979] FCA 5; (1979) 40 FLR 405 (1 March 1979)

FEDERAL COURT OF AUSTRALIA

THE QUEEN v. FIRTH (1979) 40 FLR 405
Criminal Law

COURT

FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
Brennan(1), Deane(2) and Gallop(3) JJ.

CATCHWORDS

Criminal Law - Appeal by Crown against sentence - Importation of heroin and cannabis - Recognizance - Principles applicable to variation of recognizance on appeal - Customs Act 1901 (Cth.), s. 233B(1)(b) - Crimes Act 1914 (Cth.), ss. 20 (1) 20A. The respondent, who had pleaded guilty to two offences against s. 233B(1) (b) of the Customs Act 1901 (Cth.) relating to, respectively, the importation of a non-trafficable quantity of cannabis and an amount of heroin for his own use, was released by the trial judge without the passing of sentence upon his entering into a recognizance in the sum of $2,000 to be of good behaviour for two years subject to specified conditions. At the time of the offences the respondent was a drug addict but the evidence at the trial suggested that he possessed excellent prospects for complete rehabilitation if released on recognizance subject to conditions. The Crown appealed against the sentence.

Section 20A of the Crimes Act provides, so far as is presently material:

"(2) An authorized person may apply to the Court before which a person is bound by a recognizance given under either of the last two preceding sections for a variation of the terms of the recognizance.

(3) Upon application being made to a Court under the last preceding sub-section, the Court shall summon the person bound by the recognizance to appear before the Court and, if he fails to show cause why the variation in the terms of the recognizance should not be made and it appears to the Court that the variation should be made, the Court may vary the terms of the recognizance by - (a) extending or reducing the duration of the recognizance;
(b) altering the conditions of the recognizance; or

(c) inserting additional conditions in the recognizance."

Held: (1) The Crown had not shown any warrant for interfering with the

sentence.

(2) Nor, more particularly, was it appropriate for the court to vary the terms of the recognizance because: (a) Per Brennan J. - Even if such a variation could be sought under s. 20A of the Crimes Act, the court would only so act in very special circumstances and would not impose a condition 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 that it was done or prospectively after almost half of the recognizance period had expired. (b) Per Deane J. - The circumstances of the case including the lapse of time since sentence made it inappropriate for the court so to act although it would have been preferable if the recognizance had required the respondent to continue treatment for his addiction. R.v. Weaver (1973), 6 SASR 265, referred to. (c) Per Gallop J. - It was difficult for an appellate court to so act unless guided the whole way by evidence and the Crown's delay virtually excluded such action in this case.

(3) The appeal be dismissed.

HEARING

Sydney, 1979, February 28; March 1. 1:3:1979

APPEAL

The facts appear from the judgment of Deane J.

J.C.S. Burchett Q.C. and T.M. Gardner, for the appellant.

T.R. Hoyle, for the respondent.

Solicitor for the appellant: B.J. O'Donovan (Commonwealth Crown Solicitor).

Solicitor for the respondent: Australian Legal Aid Office.
T.J. GINNANE

DECISION

March 1.

The following oral judgments were delivered.
BRENNAN J. I agree with Deane J. in the conclusion which he has reached and

in his reasons for reaching it. I would add a few observations. (at p406)

2. Whether s. 20A of the Crimes Act 1914 (Cth.) furnished the Crown with the opportunity of seeking a variation of the conditions of the recognizance or not, it would require very special circumstances to warrant an interference by this Court with the conditions of a recognizance granted ten months ago, especially where the interference is sought by the Crown as appellant. (at p406)

3. 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 recognizance should be prospectively varied, that application cannot be entertained after the expiration of almost half of the recognizance period. The delay and the nature of the variation sought combine to show that the interference of this Court in its appellate jurisdiction is not warranted. (at p406)

4. In this matter the court is not of the view that it is necessary further to reserve its decision. I shall ask my brother Deane to deliver the first judgment. (at p406)

DEANE J. This is an appeal by the Crown against sentence. (at p406)

2. The respondent, Russell Howard Firth, pleaded guilty in the Supreme Court of the Northern Territory to two offences against the provisions of s. 233B(1)(b) of the Customs Act 1901 (Cth.). The first offence related to the importation by the respondent of 62 grams of heroin. The second offence related to the importation of 8.7 grams of cannabis. Both offences arose out of the one entry by the respondent into Australia. The learned judge at first instance (Toohey J.), pursuant to the provisions of s. 20(1) of the Crimes Act 1914 (Cth.), released the respondent without passing sentence upon his entering into a recognizance in the sum of $2,000 to be of good behaviour for two years subject to certain specified conditions. (at p406)

3. 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 cannabis are prohibited imports to which s. 233B applies. The maximum penalty prescribed by the section for an offence against its provisions is two years imprisonment and a fine of $2,000. (at p407)

4. The essential facts of the offences can be briefly stated. The respondent, on 30th September, 1977, returned to Darwin after an absence from the Northern Territory of approximately ten days. He travelled by air from Singapore. Concealed 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 imports. Search disclosed the drugs which he carried. He frankly admitted the facts which constituted the offences with which he was charged and to which he subsequently pleaded guilty. The offences were not unpremeditated. The purpose of the respondent's overseas trip was to purchase the heroin which he illegally imported. (at p407)

5. The course which the learned judge followed, namely, of releasing the respondent without passing sentence upon his entering into a recognizance in the sum of $2,000 was one which would 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. (at p407)

6. It is not suggested by the Crown that there is 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 offences 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 use. (at p407)

7. The respondent, who was twenty-five 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 imposed upon the respondent and which is favourable to him has been placed before this Court in the terms in which it was, by consent, taken into account by the learned judge. At the time he committed the offences the respondent was a drug addict. In that lies the explanation of - albeit not an excuse for - his first recorded conflict with the law. (at p407)

8. The evidence before the learned judge was that, since the commission of the offences, the respondent had made significant steps towards conquering his addiction and towards 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 16th January, 1978, to the time of his sentence on 11th April, 1978, and had reached the stage at which he was assuming responsibility for the care of newer admittees to the centre. Evidence was given that if the respondent completed the course at Banyan House he would be asked by the authorities there to remain as a counsellor. The material before the learned judge warranted the conclusion which he reached that there was an excellent prospect of the respondent's complete rehabilitation if released on a recognizance subject to conditions and that the prospects of such rehabilitation would be greatly lessened if a term of imprisonment were imposed. (at p408)

9. In the circumstances, the Crown has failed to show that there is 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. (at p408)

10. 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 released were unsatisfactory and inadequate. I can see considerable force in that submission. The conditions which the learned judge imposed required the respondent to report within forty-eight hours of entering into the recognizance to a probation officer, obey that probation officer's reasonable and lawful directions as to employment, accommodation and reporting and to notify the probation officer within twenty-four hours of any change of address or employment. In my view, it would have been preferable if the learned judge had imposed conditions specifically designed to ensure that the respondent, as a condition of his release, continued 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 (see, for example, R. v. Weaver (1973) 6 SASR 265, at p 268 ). In all the circumstances of the present matter, including the lapse of time since the respondent was sentenced, I do not, however, consider it appropriate to interfere, for that reason, with the sentence which the learned judge imposed. (at p408)

11. I would add that if I had been otherwise of the view that there were grounds for interfering with the sentence which was imposed upon the respondent, a serious question would have arisen as to whether the inexcusable and largely unexplained delay between the institution of this appeal and the taking of steps to have it listed for hearing before us would have, in any event, precluded the imposition of a sentence of imprisonment at this stage. It was suggested that part of the cause of that delay related to the preparation of appeal books. Lest there should be any misapprehension on the question among practitioners in the Northern Territory, it should be clearly stated that, while it is expected that legal advisers charged with the duty of preparing appeal books should discharge that duty efficiently, the court has been at pains to ensure that procedural requirements neither prevent the expeditious disposal of appeals to this Court nor are the cause of any unnecessary hardship or expense. (at p409)

GALLOP J. I agree. I only wish to add a few remarks concerning the terms of the recognizance in this case. (at p409)

2. It was contended by the appellant that the terms of the recognizance ordered by his Honour were inappropriate and insufficiently rigid to achieve reformation of the respondent. In reply the respondent contended that the appellant need not have resorted to appeal in order to achieve such an objective, without conceding that the recognizance was inadequate in the respects indicated; and the respondent referred to the power to vary the recognizance provided by s. 20A of the Crimes Act 1914 (Cth.). (at p409)

3. 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. (at p409)

4. 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 it wishes a review of the penalty on the grounds of inadequacy and not merely a variation of the terms of a recognizance originally regarded as appropriate by way of penalty, but later needing review in the light of supervening events. (at p409)

5. However it is difficult for an appellate court to devise the appropriate terms of a recognizance unless guided the whole way by evidence and the Crown's delay in facilitating the hearing of this appeal virtually excludes re-consideration of the terms in this case. (at p409)

ORDER

Appeal dismissed with costs.