Shamane Matilda Barns v Robert Roland Burgoyne [2004] NTSC 54

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Shamane Matilda Barns v Robert Roland Burgoyne [2004] NTSC 54

PARTIES: SHAMANE MATILDA BARNS
v

ROBERT ROLAND BURGOYNE

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 21 of 2004 (20407720)

DELIVERED: 12 October 2004

HEARING DATES: 7 October 2004

JUDGMENT OF: RILEY J

CATCHWORDS:

APPEAL – Appeal against sentence – Whether learned magistrate erred in
declining to find that there were no particular circumstances of the offence
or the offender pursuant to s 37(2) of the Misuse of Drugs Act.

Legislation:
s 37(2) and (3) of the Misuse of Drugs Act.

Cases:
Duthie v Smith (1992) 107 FLR 458 at 466

Held:
Appeal dismissed.

 

REPRESENTATION:

Counsel:
Appellant: R. Goldflam
Respondent: S. Geary

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: ril0424
Number of pages: 8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Shamane Matilda Barns v Robert Roland Burgoyne [2004] NTSC 54
No JA 21 of 2004 (20407720)

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

BETWEEN:

SHAMANE MATILDA BARNS
Appellant

AND:

ROBERT ROLAND BURGOYNE
Respondent

CORAM: RILEY J

REASONS FOR JUDGMENT

(Delivered 12 October 2004)

[1] On 20 August 2004 the appellant was sentenced to an aggregate period of imprisonment of six months to be suspended after 28 days in relation to three offences to which she had pleaded guilty. Those offences were that on 1 April 2004 she cultivated 14 cannabis plants which is a traffickable quantity for the purposes of the Misuse of Drugs Act; she unlawfully possessed 224.3 grams of cannabis plant material which is also a traffickable quantity for the purposes of the Act and, finally, she unlawfully supplied cannabis to unknown persons.
[2] The appellant now appeals on the following grounds:
“1. That the learned magistrate erred in declining to find that in relation to count 1 there were no particular circumstances of the offence or the offender pursuant to s 37(2) of the Misuse of Drugs Act.
2. That the learned magistrate erred in finding that when considering whether to sentence the offender to a term of actual imprisonment in relation to counts 2 and 3 it is not a relevant consideration that the minimum such term which can be imposed is 28 days pursuant to s 37(3) of the Misuse of Drugs Act.
3. That the learned magistrate erred in finding that the appellant had not indicated an intention to plead guilty to counts 2 and 3 at the earliest available opportunity.”
[3] During the course of argument counsel for the appellant in effect abandoned grounds 2 and 3. It was conceded that success or failure of the appeal was dependent upon ground 1.
The nature of the appeal
[4] The nature of an appeal against sentence is now a matter of settled law. The exercise of the sentencing discretion is not to be disturbed on appeal unless error in that exercise is shown. There is a presumption that there was no error. It is not enough that the court on appeal would have imposed a less or different sentence. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It will only interfere if it be shown that the sentencing magistrate was in error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. It is not necessary that some definite or specific error be identified. The nature of the sentence, in the circumstances, may be enough to demonstrate that in some way the exercise of the discretion has been unsound.
The offences
[5] The offending of the appellant came to light when police attended at the premises occupied by her on 1 April 2004. She informed police that there was cannabis on the property and she led police to a number of cannabis plants that were growing in pots. Fourteen cannabis plants were located of which seven had been cut back at the stem but left with their roots still intact and growing in the pots. The appellant also surrendered a container which had been located in a freezer in the kitchen and which included six clipseal bags containing a total of 163.3 grams of cannabis. She subsequently admitted that she had prepared the bags to represent approximately 28 grams of cannabis per bag or, as it is known on the street, an “ounce bag”. Further searches located two dry cannabis plant stems that were tied together, an icecream container containing loose cannabis weighing 20 grams and a “mull bowl” containing 0.7 grams of loose cannabis. Another clipseal bag containing cannabis weighing 0.8 grams was also located.
[6] The appellant took part in a formal record of interview in which she made full admissions to the offences. In the course of that record of interview she advised police that she had grown the cannabis and tended the plants. She had cut the plants with scissors and placed the product under some stairs in order to dry it.
[7] In relation to the six bags of cannabis each weighing approximately an ounce, she indicated that she had weighed them “to make sure it’s an ounce”. The cannabis concerned did not come from her plants but she would not say by whom it had been supplied to her.
[8] When asked what her intentions were in relation to the cannabis she said “I suppose I was going to sell it but I don’t think so. I’ve had it for a while”. She said that she “got it off someone that wanted to sell it”. Later she said:
“I don’t know, I mean I’ve just got a few friends that tend to use it as well, so, I suppose I was going to sell it to them.”
[9] Later in the record of interview she said:
“My intentions is I don’t know. If I could sell ‘em I probably would …but I haven’t gone out to sell ‘em.”
[10] The appellant gave evidence before the learned sentencing magistrate at which time she denied that she intended to sell the drugs and claimed she proposed to give part of the cannabis away. The learned magistrate did not accept her evidence in this regard but rather accepted the account provided in the record of interview. Her Worship observed that she did not find the evidence of the appellant “to be credible”.
Ground 1
[11] The appeal in relation to ground 1 focuses upon the application of s 37(2) and (3) of the Misuse of Drugs Act. Those sections are in the following terms:
“(2) 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 aggravating 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 offender (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.
(3) Where a court imposes a sentence requiring the serving of a period of actual imprisonment for an offence against this Act, it shall not impose a sentence of less than actual imprisonment for 28 days.”
[12] In the course of his submissions counsel for the appellant took the Court to a series of decisions of this court in which findings had been made for the purposes of s 37(2) that the “particular circumstances” of the offender led the court to the opinion that a sentence of actual imprisonment “should not be imposed”. It was submitted that by comparison the circumstances of the present appellant were such that a similar conclusion was called for in her case. With respect, this was an unhelpful exercise. Each case must be considered in light of its own circumstances. The circumstances of the offenders addressed in the various cases referred to were quite different from those of the appellant. It was not possible to establish error on the part of the learned magistrate in this way.
[13] Notwithstanding the submissions of the appellant to the contrary, it could not be said there were circumstances of the offence that provided any basis for forming the opinion that the penalty of actual imprisonment should not be imposed. The offending was serious. The appellant was the cultivator of the cannabis plants which, as she acknowledged, she was likely to sell to her friends. The amount involved was a traffickable quantity for the purposes of the Misuse of Drugs Act. There was no suggestion that she cultivated the cannabis solely for personal consumption. Her evidence that she did not intend to sell the cannabis was not accepted by the learned magistrate. The appellant had weighed and packed the cannabis in a manner that suggested preparation for sale and she had made admissions to that effect in the course of her record of interview. In her favour was the fact that at the time of the offending she had not yet sold cannabis to anyone. The finding by the learned magistrate that there were no particular circumstances of the offence that would lead to the conclusion that a penalty of actual imprisonment should not be imposed was to be expected.
[14] The argument on this point was faintly put and I reject it. No error on the part of the learned sentencing magistrate has been identified.
[15] The principal argument presented on behalf of the appellant was that her Worship had erred in her approach to the question whether particular circumstances of the offender had been identified for the purposes of s 37(2) of the Misuse of Drugs Act. It was submitted that her Worship placed emphasis upon general deterrence either to the exclusion of other considerations or to an extent which inappropriately fettered her discretion.
[16] A fair reading of her Worship’s ex-tempore reasons for decision does not support the submission of the appellant. The learned magistrate canvassed all of the matters placed before her including the evidence of the difficult life experienced by the appellant and went on to observe:
“The question which has caused me the greatest concern in these sentencing considerations is what to make of the material which is contained firstly in the affidavit of Mr Goldflam and then the psychological report which is now before me. I accept that you suffered abuse as a child and there have been recent triggers which have caused the resurfacing of the trauma.
But I have no evidence as to what if any causal link there is between those matters and the specific offending which is before the court and which, as I say, is the sort of offending where deterrence is almost always the most prominent sentencing principle. And of course, Mr Goldflam advised me the other day that there was – that he wasn’t seeking to put to me that there was a clear link in the offending and the abuse.
In the end, I have decided that I cannot give this aspect of the case great weight. I do accept that abuse occurred and that it’s certainly part of the background of your case which will be taken into account but I cannot give it the sort of weight which would outweigh general deterrence in sentencing you.”
[17] The learned magistrate then went on to address other matters that had been placed before her including prior good character, the plea of guilty, the appellant’s co-operation with the police and so on. Her Worship concluded that she was not able to find that s 37(2) of the Misuse of Drugs Act did not have application in this matter.
[18] In the context of the whole of her reasons it can be seen that her Worship set out all of the matters relevant to her decision. She then weighed up those factors in light of the offending and concluded that the seriousness of the offending and the need for general deterrence outweighed the matters that had been put in mitigation. In relation to s 37(2) of the Misuse of Drugs Act it is necessary to consider the particular circumstances of the offender in the context of the offending before the court. The consideration of the circumstances of the offender does not take place in isolation. “Good character, by itself, would hardly ever warrant the imposition of a non-custodial sentence for a serious breach of the Act”: Duthie v Smith (1992) 107 FLR 458 at 466. The learned magistrate adopted this approach. She was not convinced that the particular circumstances of the appellant meant that the penalty of actual imprisonment should not be imposed. I am unable to see that she erred in so deciding.
[19] The appeal is dismissed.
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