Miller v Burgoyne [2004] NTSC 47

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Miller v Burgoyne [2004] NTSC 47






FILE NO: JA 56 of 2003 (20314610)

DELIVERED: 7 September 2004

HEARING DATES: 31 August 2004



Applicant: A. Hopkins
Respondent: C. Roberts

Applicant: Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Number of pages: 13


Miller v Burgoyne [2004] NTSC 47
No JA 56 of 2004 (20314601)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs







(Delivered 7 September 2004)

[1] This is an appeal against the sentence imposed on the appellant on 18 November 2003 by the Magistrates Court sitting at Alice Springs.
[2] The appellant was arrested on 31 July 2003 and charged with six counts under s 5(1) of the Misuse of Drugs Act. The first four counts asserted an unlawful supply of cannabis to another person. The fifth asserted an unlawful possession of cannabis plant material and that the amount of that material was a traffickable quantity, namely 57.5g. The sixth alleged possession of money or other property, namely $150 cash, reasonably suspected of being the proceeds of an offence, namely selling cannabis.
[3] These matters came before the authorised Stipendiary Magistrate for the Drug Court in the Southern Region, established in accordance with the announcement of the Minister for Justice and Attorney General made on 11 August 2003 concerning a new initiative that aimed to target and reform offenders addicted to illicit drugs, through treatment and rehabilitation. The learned magistrate had undergone specific training for that appointment.
[4] As I understand the material made available to me, this was an experimental program of a nature similar to the Court Referral, Evaluation for Drug Intervention and Treatment program that had been found to be successful in Victoria. The program introduced by the Minister is titled CREDIT NT.
[5] The program has not been based on any specific legislative footing. It is an informal, albeit government-sponsored, initiative the aims of which are said to be "to reduce illicit drug use and related crime by participants, reduce the likelihood of a sentence involving incarceration, reduce the cost to the justice and health systems and improve the health and social contribution of the participants." (The emphasis is mine.)
[6] In his announcement the Minister said:
"Under the new drug Court program Magistrates can divert offenders who have allegedly committed crime to fund their drug habit to drug intervention and treatment programs.

Suitable offenders will enter a treatment and rehabilitation program extending up to five months as part of their bail conditions. They will be regularly monitored through Court Reviews and their treatment programs taken into account at sentencing stage."

[7] The above philosophy is reflected in the formal draft procedure manual issued under the auspices of the Northern Territory government. Inter alia, the manual reiterates the above aims and establishes specific criteria of eligibility for admission to the program. One of the criteria is that the person concerned must have an illicit substance use problem.
[8] As was pointed out by Mr Roberts, of counsel for the respondent, the CREDIT NT program is intended to operate within the framework of the existing provisions of the Sentencing Act, the Misuse of Drugs Act and the Bail Act. In particular, the provisions of the Bail Act are to be employed as a vehicle for ensuring attendance of eligible persons at programs and bringing them before the court for regular review. That was essentially what occurred in the instant case.
[9] I agree with Mr Roberts that the scheme leaves intact not only the provisions of the Sentencing Act but also the well-established principles of sentencing arising under it. Thus, for example, the relevance of the factors of general and personal deterrence remain undiminished. It is, of course, in relation to the application of those and other principles and the weight to be attributed to each of them respectively that the CREDIT NT program diversion scheme takes effect.
[10] So it is that any sentence to be imposed must still reflect the important factor of general deterrence, whilst, at the same time, giving due recognition to the expressed aims of the program. The latter aspect will normally be achievable by a judicious use of the power of conditional suspension of custodial sentences where it would otherwise be appropriate to impose such sentences.
[11] Such an approach is apparent on a consideration of the sentencing reasons published by Martin CJ on 23 February 2004 in the unreported case of The Queen v Shields (SCC 20315567). He there imposed a sentence of 19 months’ imprisonment in recognition of the seriousness of the offending and the need for general deterrence, but suspended that sentence. It is certainly true that the offender in that case had already spent five weeks in custody prior to embarking upon the relevant treatment program. However, the important aspect of the reasoning of the learned Chief Justice was that it would have been counterproductive to require the offender to go back to gaol after showing excellent progress towards rehabilitation by reason of a successful involvement in the program in question.
[12] I am informed by the parties to the present appeal that the above sentencing decision is the only relevant pronouncement that they have been able to locate, at this point, following the implementation of the CREDIT NT scheme.
[13] I have dwelt upon the conceptual basis of the scheme at some length because it is clearly a fundamental consideration in the proper disposal of the present appeal.
[14] I now turn to the relevant facts relating to this matter.
[15] The appellant came before the Magistrates Court as an offender with a minimal prior history. It was common ground that, at that time, he had a significant addiction to cannabis. He was thus eligible for diversion to the CREDIT NT scheme and was bailed to participate in it. He was accepted into the scheme on 2 September 2003 and duly satisfied its requirements.
[16] When the matter came before the learned sentencing magistrate on 18 November 2003 for final disposal of the relevant charges, he had before him a certificate from the Court Clinician appointed for the purposes of the CREDIT NT scheme to the effect that the appellant had fruitfully participated in the relevant program and that there was no need for any further sessions at that stage. The report stated that, as at 17 November 2003 "treatment goals have been accomplished". In short, it was made apparent to the learned magistrate that the diversion had been successful and that the aim of the program had been achieved in relation to the appellant.
[17] The prosecutor indicated to the learned magistrate that the charges had arisen from a surveillance operation conducted by the police on 31 July 2003. The appellant, a 39-year-old Arrente man, was observed supplying four co-offenders with six small plastic bags containing cannabis from outside his place of residence in Alice Springs. Each bag contained a total of 10.4g of cannabis and was sold for $25.
[18] The premises occupied by the appellant were searched. A total of 36 small plastic bags containing cannabis were located. The total weight was 51.5g. $150 was also found in cash, this being the proceeds of the sale of the six plastic bags.
[19] It was pointed out to the learned magistrate that, because the appellant had no prior history of drug offences, the mandatory sentencing provisions contained in s 37(2) and (3) of the Misuse of Drugs Act were not applicable.
[20] The learned magistrate was told that the applicant was born in Alice Springs and was a member of a strong, hard-working and successful Aboriginal family. He completed year 11 at Alice Springs High School and thereafter had a consistent and impressive work record.
[21] Unfortunately he had become addicted to the use of cannabis from about the age of 20, having been introduced to it through friends. By the time that he came before the court he was quite heavily addicted.
[22] Notwithstanding his addiction he had spent two years as a youth worker at the Alice Springs Youth Centre and also worked at the Yipirinya School as a home liaison officer for six years. In 1996 he worked in Adelaide for Metropolitan Aboriginal Youth Training, assisting homeless Aboriginal young people.
[23] He returned to Alice Springs and was employed with Night Patrol and then the Aboriginal Childcare Agency, for which he was the foster placement manager. Thereafter he worked at Ross Park School as the Aboriginal resource officer and was, at the time that he appeared before the court, working with the Ingkerreke Outstation Resource Centre.
[24] The court was told that the cannabis the subject of the charges was the product of a single plant that had been grown by the appellant out in the bush and had been primarily intended for his own use. However he had been experiencing some difficulties with a maintenance debt and also a small claims debt. He was under the misapprehension that, if he could not pay those liabilities, a warrant might be issued for his imprisonment.
[25] It was in such a context that he was requested to sell some of his personal supply of cannabis. Because of the difficulty that he was in, he foolishly agreed to do so.
[26] When questioned by the police he was quite frank with them and has at all times co-operated. It was always contemplated that he would plead to the offences following his diversion. He did so.
[27] It was made apparent to the learned magistrate that the appellant had clearly benefited from his diversion. He had disassociated himself from other users of cannabis and his participation in the program had resulted in a significant lifestyle change.
[28] I here pause to comment that it is somewhat difficult to envisage a more successful outcome of the CREDIT NT scheme than that which flowed from the appellant's diversion in this case.
[29] Equally, it must be noted that, to adopt an expression favoured by one of my judicial colleagues, the appellant in any event came before the court with many mitigatory runs on the board. Moreover, it was important to note that this was not a series of offences at the top end of the scale. It is clear that the appellant had not been involved in some significant ongoing commercial operation. His offending had arisen from a situation of perceived need, rather than greed.
[30] In sentencing the appellant the learned magistrate indicated, at the outset, that one particular aspect of the type of matter before him was a consideration of general deterrence and that it was his view that "people who get themselves involved in the supply and sale of cannabis to others for personal gain, albeit to pay off debts or for any other reason, place themselves into that category of offence, where the Court has to look specifically, first of all, at general deterrence." (The emphasis is mine). He went on to say "And for these sorts of matters, albeit it’s alleged that it's only occurred once on this particular day, I'm of the view that the Court should be looking at a custodial sentence."
[31] It is fair to say that counsel for the appellant made strong submissions to the learned magistrate against such a proposition, pointing to the successful outcome of the appellant's diversion and the need to avoid, in effect, negating the progress that had been made towards rehabilitation.
[32] In the course of proceeding to sentence the appellant the learned magistrate pointed out that the supply of drugs to other people was a serious matter and one that was deserving of condign punishment. He stressed the importance of general deterrence to bring home to like-minded individuals that, if they engaged in that type conduct, they could expect to be dealt with very seriously.
[33] He went on to say that, whilst he recognised the prior good record of the appellant and his willingness to rehabilitate himself and change his lifestyle:
"… your offending is serious and does warrant a period of imprisonment, and I intend to impose that upon you today to bring home to you and to other like-minded individuals that the supply of cannabis to others won't be tolerated.

Having said that, I've also reached the conclusion on hearing the matters that I have that it would be appropriate to partly suspend the sentence, and I intend to do that today. To put it in the vernacular, I'm going to impose upon you today a short, sharp sentence to bring home to you that your conduct was wrong and won't be tolerated by the community, but I also wish to give you the opportunity to continue your rehabilitation that you've shown that you wish to participate in."

[34] He then proceeded to sentence the appellant to imprisonment for a period of four months commencing on 18 November 2003, to be suspended for 14 months, after service of seven days.
[35] The present appeal essentially complains of the requirement, in all the circumstances, to actually serve portion of the custodial sentence. It is argued that the learned magistrate erred in principle in adopting the sentencing strategy outlined above and that, in so far as there was such a requirement, the sentence was manifestly excessive.
[36] In my view, this complaint has been made good. It seems to me that, with respect, the fundamental approach adopted was not in accordance with proper sentencing principle. I say that for three reasons.
[37] First, it appears to me that the preoccupation of the learned magistrate with the need to recognise general deterrence in matters of this type led him to adopt a compromise approach that not only did not, in reality, fully take account of that factor, but also resulted in a practical outcome, so far as the appellant was concerned, that was potentially counterproductive.
[38] It seems to me that, conformably with the approach of the Chief Justice in The Queen v Shields, general deterrence ought to have been achieved by imposing a custodial head sentence of a length that plainly recognised the factor of general deterrence in relation to cases of multiple sales of cannabis for gain. The particular situation of the appellant, bearing in mind his successful diversion into the CREDIT NT scheme and the mitigating factors that had been identified in relation to him, ought then to have been recognised by appropriate use of the power of suspension.
[39] I consider that resort to the imposition of a short sharp custodial sentence on the basis that it was demanded by considerations of general deterrence constituted an error in conceptual approach that tended to confuse quite separate sentencing factors and aims.
[40] Second, and as a corollary to the point just made, it appears to me that an approach such as that adopted had a strong potential to negate the potential long-term efficacy of the CREDIT NT program. If it appears to potential candidates that they may well be required to serve an actual custodial sentence, or some portion of it, in any event, then, as a matter of common sense, there will be greatly reduced incentive for them to approach participation in such a scheme in a meaningful fashion. The scheme plainly intends to provide a patent incentive and encouragement towards rehabilitation. It is important that it be viewed in that fashion.
[41] I am by no means to be taken as suggesting that, in all cases, total suspension of a custodial sentence ought, automatically, to follow participation in the CREDIT NT program. Plainly, there will be instances in which that is not appropriate. However, I would suggest that, if diversion criteria are correctly applied in the first instance, such an outcome ought, nevertheless, to be more the rule rather than the exception in situations where the participation has obviously been successful and the likelihood of rehabilitation is high. This was a classic case for the approach to which I have referred.
[42] Third, I do not think that, in a case of this nature, where diversion has appropriately been sanctioned, it can fairly be said that, to employ the expression used by the learned magistrate, the court has to look, first of all, at general deterrence. On the contrary, whilst that factor still remains to be recognised, it will normally have ceased, in the particular matter under consideration, to be a (or the) predominant factor in arriving at the specific sentencing strategy apropos the offender in question. ( Cf the dictum of Nader J in The Queen v Hogan (1987) 30 A Crim R 399 at 403.)
[43] I consider that, in the instant case, it would have been appropriate, on application of correct sentencing principles, to have imposed a more substantial head sentence in recognition of general deterrence in relation to supply for gain transactions and then to have fully suspended it in the case of the appellant, subject to appropriate conditions to ensure his continued rehabilitation.
[44] Accordingly, I allow the appeal and set aside the sentence appealed against. Having regard to the doctrine of double jeopardy I am of opinion that, in the instant case, it would be unfair, at this point, to impose an increased head sentence on the appellant. I therefore the Roba substitute for the sentence imposed a sentence of imprisonment for four months fully suspended for 18 months from today's date, upon condition that the appellant be subject to the supervision of Community Corrections and obey all reasonable directions of that service including attendance, from time to time, at such programs as they may consider appropriate.
[45] I will hear counsel as to any consequential matters.