Musgrave v Yarllagulla [2006] NTSC 17






FILE NO: No. JA 11/2005 (20416725)

DELIVERED: 2 March 2006

HEARING DATES: 22 February 2006



Appeal – Justices – Crown Appeal against sentence – Whether Sentence inadequate in not recording conviction – Whether seriousness of offence and general deterrence given appropriate weight – Whether discretion of magistrate exercised correctly - Significant mitigating circumstances - Appeal dismissed.


Appellant: J. Adams
Respondent: no attendance

Appellant: ODPP
Respondent: NAAJA

Judgment category classification: B
Judgment ID Number: Ang200604
Number of pages: 11


Musgrave v Yarllagulla [2006] NTSC 17
No. JA 11/05 (20416725)






(Delivered 2 March 2006)


[1] At the Maningrida Court of Summary Jurisdiction sitting of 22 December 2004, the respondent pleaded guilty to one count of unlawful supply of cannabis, contrary to section 5(1) of the Misuse of Drugs Act (NT). The maximum penalty for this offence is a fine of $10,000 or imprisonment for 5 years.

[2] The learned Stipendiary Magistrate after hearing evidence from the respondent and submissions from her counsel and the Prosecutor released the respondent on a bond without conviction pursuant to section 11 of the Sentencing Act (NT).

[3] The Prosecutor appealed against this disposition on the ground that the learned Stipendiary Magistrate erred in not recording a conviction.

[4] In support of this ground of appeal the Prosecutor submitted that insufficient weight was given to the seriousness of the offending and the need for general deterrence. It was also submitted that the supply of the drugs within an Aboriginal community constituted an aggravating factor and that neither one’s sex nor absence of prior offending ought protect one against conviction.

[5] The facts as admitted before the court of summary jurisdiction were as follows.

[6] The respondent, a full-blood Aboriginal woman who normally resided at Maningrida, travelled to Darwin and gave birth to a child at Royal Darwin Hospital. She booked on a return flight to Maningrida on 21 April 2004.

[7] On the night of Tuesday 20 April 2004 the respondent was visited in Darwin by another woman whom she knew from Maningrida. The respondent was urged to take three packages containing cannabis back to Maningrida to pass on to the intended recipients. She reluctantly agreed to do this. The packages of cannabis were then secreted among the respondent’s personal items inside her backpack.

[8] At 1pm on Wednesday 21 April 2004, the respondent went to Air North counter at Darwin Airport. She booked the 2pm flight to Maningrida and booked her backpack containing the cannabis as luggage. At around 1:30pm police using the service of a trained drug sniffer dog, were alerted to the suspicious nature of contents of the respondent’s luggage.

[9] The respondent was approached by police. She confirmed the backpack belonged to her. She admitted to knowing the backpack contained cannabis. She gave police permission to search it. Three separate packages of cannabis were seized, comprising a combined total weight of 73.7 grams of cannabis. The cannabis was in one ounce bags. One, which had been marked ‘Cameron’, contained 26.8 grams. Another 1 ounce bag, unmarked, contained 26.2 grams. A further 1 ounce bag marked ‘Stephen’ contained 24 pre-package deals of cannabis, weighing 21.7 grams. The average weight of cannabis per individual package was 0.9 grams.

[10] The respondent later participated in a record of interview and admitted possession of the cannabis with intention to supply it to another person whom she had named. She denied any further involvement other than transporting the cannabis as a favour to friends and relatives. She displayed an understanding that what she had done was illegal and she stood to gain no personal benefit from her actions.

[11] The learned magistrate was informed that cannabis was sold in Maningrida for $50 per deal bag containing less than 1 gram and that the cannabis in the respondent’s backpack had a potential yield in Maningrida of some $3685. The cannabis was purchased in Darwin for approximately $350 per ounce bag.

[12] The Magistrate relied on section 8(1)(a) of the Sentencing Act in exercising his discretion not to record a conviction. That section provides as follows:

8. Conviction or non-conviction

(1) In deciding whether or not to record a conviction, a court shall have regard to the circumstance of the case including –

(a) the character, antecedents, age, health or mental condition of the offender

(b) the extent, if any, to which the offence is of a trivial nature; or

(c) the extent, if any, to which the offence was committed under extenuating circumstances.

[13] The Prosecutor submitted that the learned Magistrate erred in exercising his discretion in not recording a conviction for the offence of unlawful supply of cannabis having regard to the seriousness of the offending and the need for general deterrence. However in my view the learned Stipendiary Magistrate did have due regard to the seriousness of the offending, the need for general deterrence and the relevant personal circumstances of the offender in exercising his discretion. The respondent’s multitude of mitigating circumstances in combination provided sufficient reason for the learned magistrate to exercise his discretion under s8 (1)(a) and (c) of the Sentencing Act and not record a conviction.

[14] Cobiac v Liddy (1969) 119 CLR 257, to which the learned magistrate made reference, demonstrates the importance of the availability and application of judicial discretion in the lenient sentencing of offenders. Windeyer J said (at 275):

‘Were there in this case any facts which could justify the magistrate exercising his discretion by declining to convict and dismissing the complaint? In the Supreme Court their Honours were unanimous in thinking that there were not. On the basis that the discretion given by the Offenders Probation Act had not been abrogated by the Road Traffic Act, they thought that nevertheless the magistrate had in the circumstances of this case abused his discretion. I am far from satisfied that this was so… The question is not what we would do, but what could he lawfully do. The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all. The statutory conditions for its exercise were that he should be “of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged…it is expedient to exercise” the power. That means, I think, that the magistrate must be of the opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers “having regard to” the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matter they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.’

[15] It was the task of the learned magistrate to consider all the circumstances of the offending and the circumstances particular to the offender and adjudge whether the case fell within the bounds of section 8(1)(a), (b) or (c). A judge or magistrate does not act erroneously in exercising his or her discretion provided such discretion is exercised within the scope of the legislation. Of course it is not for this court to intervene simply upon the basis that this court would have exercised its discretion differently from the learned magistrate at first instance. This court will only interfere if it is demonstrated that the sentencing court fell into material error of law or fact. On the sentencing remarks of this case I can see no error in the exercise of the sentencing magistrate’s discretion. The learned magistrate had the authority to exercise such discretion, such discretion was exercised and it was exercised within the bounds of the law as provided for in section 8 of the Sentencing Act.

[16] The mitigating circumstances of the respondent taken into account by the learned magistrate included the fact that she was just 18 years old (“barely an adult”), she did not intend to sell the drugs, she was the mother of two young children one of whom she was breast feeding, she did not smoke cannabis herself, she received no reward or financial gain by carrying the drugs and she was a woman of good character having no criminal history.

[17] The learned magistrate also considered her to be a vulnerable person at the time she was approached to carry the drugs and that it was because of this ‘vulnerable state [that] she was preyed upon’. He considered that her vulnerability was partly due to her health/mental state as at the time of the commission of the offence she was in hospital caring for a young baby who was suffering from pneumonia. The magistrate correctly held that the offence was a ‘technical supply’. He said it was at ‘the bottom of the scale’ but noted that he did not consider the offence to be ‘trivial’. He added - somewhat mysteriously - that no extenuating circumstances existed in this case.

[18] In support of its submissions the Prosecutor referred to a number of cases of this court highlighting the seriousness of the offence of supplying marihuana to Aboriginal communities due to the harm it causes and the need for general deterrence. In R v Thomas Wesley (unreported SCNT SCC 20103640, 20 September 2001) I said, in a passage endorsed in Scott v Perry [2003] NTSC 26:

‘….as I have said on previous occasions, supplying cannabis to Aboriginals on remote communities is to be viewed seriously. As Mr Elliott for the Crown said, there are sufficient social problems on those remote communities by way of alcohol and petrol sniffing such that the Court should be very vigilant to do what it can by way of general deterrence to prohibit the added problem of marihuana’.

[19] This, of course, remains the case. See Wunungmurra v The Queen [2006] NTCCA 3. The respondent, however, due to her vulnerable state at the time of the commission of the offence, was not an appropriate medium for making an example to others for the purpose of general deterrence. As the learned magistrate said, the vulnerable respondent had “been used as a pawn in a play by people older than herself”. Moreover the learned magistrate’s disposition is explicable in the often cited words of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213 :

‘Prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of the judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.’

[20] The Prosecutor also relied upon the authority of Musgrave v Liyawanga & Ors and Hales v Stewart [2004] NTSC 53 where BR Martin CJ said:

‘The message should be sent to those persons in indigenous communities who are tempted to engage in this type of criminal conduct that their sex and absence of prior offending will not ordinarily protect them against conviction’.

[21] The present case, however, is not “ordinary”. Rather, it is a case exhibiting a number of significant mitigating factors which the learned magistrate took into account and which led him to exercise his discretion in favour of the respondent in not recording a conviction. The respondent, as I have said, gave evidence before the learned magistrate. The learned magistrate described the respondent as “obviously timid, immature, naïve, shy, reticent, inexperienced…,” and “vulnerable”, and as having been “preyed upon” by another.

[22] After considering the submissions of the appellant and the written submissions of the respondent in this matter and the authorities to which I had been referred I concluded that it is not appropriate for this court to interfere with the disposition of the sentencing Magistrate. The unexplained delay in bringing the appeal on for hearing reinforced this view. The sentence imposed is not manifestly inadequate or disproportionate to the seriousness of the offending having regard to the respondent’s personal circumstances. In my view the decision not to record a conviction was within the sentencing Magistrate’s discretion.

[23] It was for these reasons I dismissed the Prosecutor’s appeal at the conclusion of the hearing on 22 February 2006.