Joran & Ors v Wilson & Anor [2006] NTSC 46

PARTIES: JORAN, JASON
VIGONA, TINA
CEBU, MARYANNE
PASCOE, DALE and
COOPER, ROWENA

v

WILSON, DAVID ANDREW and
MUSGRAVE, RAYMOND

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: Nos. JA 42, 44, 48, 49 & 50 of 2005
(20517629, 20513634, 20515176, 20514028, 20516051)

DELIVERED: 26 APRIL 2006

HEARING DATES: 6, 7, 21, 26 APRIL 2006

JUDGMENT OF: ANGEL J

APPEAL FROM: NT COURT OF SUMMARY JURISDICTION

CATCHWORDS:

Appeal – justices – appeal against severity of sentence - Justices Act (NT) – unlawful supply of cannabis - Misuse of Drugs Act (NT) – imprisonment not the starting point for sentencing for the unlawful supply of cannabis to or within Aboriginal communities – full range of sentencing dispositions under s 7 Sentencing Act (NT) available – imprisonment disposition of last resort – Sentencing Magistrate ought first to exclude all other non-custodial dispositions under s 7 Sentencing Act (NT) – appeal allowed.

Misuse of Drugs Act (NT), s 5(1), 5(2)(a)(iv), 9(1), 9(2)(e), 9(2)(f)(i)
Sentencing Act (NT), s 7

Followed:
Musgrave v Yarllagulla [2006] NTSC 17
Musgrave v Liyawanga [2004] NTSC 53
Dunn v Woodcock [2003] NTSC 24

Approved:
Scott v Perry [2003] NTSC 26
Wunungmurra [2006] NTCCA 3
Salmon v Chute (1994) 94 NTR 1
Hales v Stewart [2004] NTSC 53
R v Thomas Edward Wesley SCC 20103640, unreported, 20 September 2001

Applied:
Gumurdul v Reinke [2006] NTSC 27
R v Tait (1979) 46 FLR 386
Turner v Trenerry [1997] 1 NTSC 21
Williams v Marsh (1985) 38 SASR 313

Distinguished:
R v Hansen–Detaurbet SCC 20313650, unreported, 14 December 2004

REPRESENTATION:

Counsel:
Appellants: S Musk
Respondents: S Ozolins

Solicitors:
Appellants: NAAJA
Respondents: Office of DPP

Judgment category classification: B
Judgment ID Number: Ang200609
Number of pages: 30

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Joran & Ors v Wilson & Anor [2006] NTSC 46
Nos. JA 42, 44, 48, 49 & 50 of 2005
(20517629, 20513634, 20515176, 20514028, 20516051)

BETWEEN:

JASON JORAN
First Appellant

TINA VIGONA
Second Appellant

MARYANNE CEBU
Third Appellant

DALE PASCOE
Fourth Appellant

ROWENA COOPER
Fifth Appellant

AND:

DAVID ANDREW WILSON
First Respondent

RAYMOND MUSGRAVE
Second Respondent

CORAM: ANGEL J

EX TEMPORE REASONS FOR JUDGMENT

(Delivered 26 April 2006)

[1] These are five appeals pursuant to s 163 of the Justices Act (NT) against severity of sentence. The appellants are all traditional Aboriginals from either the Tiwi Islands or Maningrida in central Arnhem Land who committed cannabis offences contrary to the Misuse of Drugs Act (NT).

Jason Joran

[2] This appellant appeared before the Court of Summary Jurisdiction at Milikapiti on Melville Island on 18 August 2005 and pleaded guilty to a single charge of unlawful supply of cannabis contrary to s 5(1) Misuse of Drugs Act (NT). He was convicted and sentenced to three months imprisonment, which was ordered to be suspended after he had served one month with an operational period of 18 months on conditions. His grounds of appeal are, first that the sentence was manifestly excessive, secondly, that the Chief Magistrate failed to consider alternative dispositions, and thirdly, that the Chief Magistrate erred in imposing an actual term of imprisonment.

[3] The circumstances of his offending are as follows. On Tuesday 26 July 2005 police received information that this appellant was selling drugs in the Nguiu Community on Bathurst Island. About 3 pm, a police patrol was sent into the area. Police sighted the defendant in the area known as Jubilee Camp and asked why he was in the community. He replied, “I came to draw out money from the bank”. He was then told the police suspect he may have been in possession of dangerous drugs and selling drugs in the community, to which he said nothing. He was then asked if police could conduct a body search of him, to which he said “yes”. A large amount of cash was found in his left side pocket. A packet of cigarettes containing two foils of cannabis was also found in the packet. When asked what was in the foils, the appellant replied “ganga to sell”. He was then asked, “where did the money come from?”, to which he replied, “from dealing ganga”. He further stated that he sold 15 sticks of cannabis that day and that he sold them for $30 each in all for a total he received of $380. When asked why he sold drugs, he said, “for food and grog”. He was arrested and conveyed to the Nguiu Police Station where he participated in an electronic record of interview in the company of a prisoner's friend and an interpreter. During the interview, he made admissions to buying the ganga in Darwin earlier in the day and bringing it into Nguiu via Snake Bay on Melville Island. He described how he bought the ganga in a larger lot and then broke it down into smaller portions to approximately 1 gram, which were then rolled in aluminium foil and sold as sticks. At the time of the offence, the Nguiu Community was a public place, open to and used by the public. At the time, school children had just been let out of school and were walking through public areas within eye sight of the defendant supplying drugs.

[4] The prisoner had no prior drug convictions and had not come to the attention of the police since 2000. His counsel informed the court the appellant was a drug user who sold drugs on this occasion to sustain his own habit. He had been addicted to drugs since being 12 or 13 years of age. The prisoner had a younger brother who was a police officer and an aunt who was a police officer. The prisoner was 27 years of age, working as a janitor at the school.
Dale Pascoe

[5] This appellant appeared before the Court of Summary Jurisdiction at Maningrida on 3 August 2005 and pleaded guilty to one count of unlawfully possess cannabis plant material, being a trafficable quantity, namely 67 grams contrary to s 9(1) and (2)(e) Misuse of Drugs Act (NT) and one count of bringing liquor into a restricted area contrary to s 75(1)(a) Liquor Act (NT). In respect of the liquor charge, he was convicted and fined $200. In respect of the cannabis charge, he was convicted and sentenced to two months imprisonment, which was ordered to be suspended after he served 14 days with an operational period of two years on conditions that he subject himself to the supervision of the Department of Correctional Services for 12 months, that he not consume cannabis or other illegal drugs and that he submit, as required, to testing for cannabis or other drugs.

[6] His grounds of appeal are that the Chief Magistrate erred in characterising the offence of possess dangerous drugs as an offence of supplying dangerous drugs, that the Chief Magistrate erred in not giving sufficient weight to the good character of the appellant, and that the Chief Magistrate erred in selecting the appellant as a special vehicle for general and specific deterrence. The circumstances of this appellant’s offence were as follows. On Friday 10 June 2005, the appellant attended an unidentified residence in Karama, Darwin and obtained a total of 67 grams of cannabis plant material from the occupant. The appellant was given 60 plastic deal bags of cannabis weighing 42 grams, to sell on behalf of the occupant at the Maningrida community. The appellant was given a bag of cannabis weighing approximately 25 grams payment for the selling of the 60 deal bags. Sixty deal bags costing $50 each, with a real value of $3,000 in return was sold in the community. Acting on information received, Maningrida police conducted an overnight road block on the Maningrida/Oenpelli Road near Dreaming Lady Billabong, situated at approximately 100 kilometres south of Maningrida. Around 3.45 am on Saturday 11 June 2005, the appellant, driving a white Toyota Landcruiser Troop Carrier bearing NT registration number 724 024, was apprehended at Dreaming Lady Billabong. On being spoken to, the appellant agreed to show police where the cannabis was hidden inside the vehicle. Located inside the passenger side door were two round parcels of cannabis tightly wrapped in coloured electrical tape and two full plastic packets of new plastic deals bags. Also located were a 700 ml bottle of Bundaberg Rum and a four-litre cask of moselle wine and white plastic hand-operated grinder covered in cannabis resin. These items were seized and subsequently exhibited at Maningrida Police Station. On Saturday 11 June 2005, during the evening, the appellant attended the Maningrida Police Station, participated in an electronic record of interview and provided a “no comment” interview. He was charged and bailed to appear.

[7] At the time of sentencing the prisoner was “a few months shy of his 42nd birthday”. He was a first offender. He was educated at Darwin High School to year 10 level. The appellant had an extensive work history and was doing a Diploma of Social Management course in Perth via two week block periods of study. His counsel asked for “a without conviction bond”. The appellant is married with five children. He lived in Maningrida all his life. His counsel submitted “there will be other cases today where we will be conceding that periods of imprisonment are appropriate. Whether they are served or not is another thing for another argument later in the day. But on this occasion, Sir, with these antecedents, we submit on the one occasion he be allowed some considerable leeway on the basis of his excellent antecedents”.

Tina Vigona

[8] This appellant appeared before the Court of Summary Jurisdiction at Milikapiti on 17 August 2005. She pleaded guilty to one count of bringing liquor into a restricted area contrary to s 75(1)(a) Liquor Act (NT), one count of unlawful possession of cannabis plant material in a public place contrary to s 9 (1) and (2)(f)(i) Misuse of Drugs Act (NT) and one count of unlawful possession of an implement for use in the administration of a dangerous drug contrary to s 12(1) Misuse of Drugs Act (NT). In respect of the liquor offence, she was, without conviction, ordered to pay a victim levy of $40. In respect of the cannabis count, she was convicted and released on a $400 own recognisance good behaviour bond for 12 months, subject to conditions that she be subject to the supervision of the Department of Correctional Services, that she undergo alcohol and other drugs counselling as directed and she not take cannabis or other illicit drugs and that she submit, as required, to testing for cannabis or other drugs.

[9] Her grounds of appeal are that the sentence was manifestly excessive in the circumstances and that the Chief Magistrate imposed excessively onerous conditions on her bond. By leave the third ground was added, namely that the Chief Magistrate erred in recording a conviction.

[10] The circumstances of her offending were as follows. On Friday 3 June 2005, the appellant drove a Toyota Hilux twin cab registration number NT 717 671 from Milikapiti on Melville Island to Nguiu on Bathurst Island. The appellant phoned ahead to the boat shed to have a ferry available to convey her and the vehicle across the strait between the two islands.

[11] At about 4.15 pm, she stopped at the Paruwu boat ramp to wait for the ferry to land and load the vehicle. Police, acting on information, spoke with her a Paruwu. When asked where she was going, she replied, “home to Nguiu”. Police seized the appellant's vehicle and found 24 cans of Victoria Bitter evenly distributed between two green shopping bags. A further search revealed .4 of a gram of cannabis in a cone in the appellant's handbag. Police asked the defendant what happened to the missing six cans, she replied, “we drank them this morning”. The police asked her who owned the cannabis, she said, “I do”. Police asked her whether she possessed the cannabis and the appellant said, “it is for personal use”. Police asked her why she possessed the cone and she replied, “I use it to smoke ganga from a bucket bong”. Police seized the 24 cans of Victoria Bitter and the .4 of a gram of cannabis and the Toyota Hilux used to bring the liquor into the restricted area. At the time both Bathurst Island and Melville Island were declared restricted areas.

[12] The matter was heard before a Community Court and the prisoner said she had been smoking ganga for more than 20 to 30 years. She said she was not “a constant smoker where I smoke all day long” but “maybe one smoke a night to put me to sleep and relax me”. The prisoner had made substantial contributions towards her community. She was active in setting up a pre-school at Nguiu for child care. She spent her whole life working in different government jobs. She had been suspended without pay since 9 June 2005 which had put her in financial straights. She had two dependant children. Her counsel asked the court not to record a conviction which would permit the appellant to go back to work. The appellant was addicted to smoking cannabis.

[13] Community elders present at the Community Court expressed views that within the community at Nguiu, cannabis was not to be tolerated. The elders said it was not part of Aboriginal culture on the Tiwi Islands. The prosecutor submitted inter alia “I don’t think there should be any fines imposed, because she suffered financially in being suspended from work, but I definitely believe a conviction should be recorded”.

[14] In his sentencing remarks, the Chief Magistrate said:

“This case is on the cusp as to whether or not I should convict or should not convict. But to some extent I'm saying these words for whatever comes for Ms Vigona in relation to her employment. She has shown, it would seem, a commitment to her community and a commitment to her family. Those things speak strongly for her and she gets credit for that. She also gets credit for an early plea and those things also operate in her favour. So, as I say, notwithstanding that it is my general practice to convict in relation to offences dealing with drugs, this case is a close run thing. But I'm going to convict today. There is going to be a conviction in relation to the drug offences. Some aspects of it, which occur to me, that warrant the conviction are that this was not just having one cigarette at home. This was having material, albeit not a great deal of material, on her as she was travelling around in a public vehicle. She was carrying the bong around with her, or the implements around with her. So it’s not something, it would seem, that she just has in one place at home. It’s something that she travels with as part of her it would seem, perhaps, paraphernalia. In any event, she was in public with these things. She accepts that she had them there, so it would seem to me to be sending the wrong message … to treat her differently from other people. So there will be a conviction in relation to charges three and four.”

Maryanne Cebu and Rowena Cooper

[15] These appellants appeared before the Court of Summary Jurisdiction at Maningrida on 3 August 2005. The appellant, Cebu, pleaded guilty to three counts of unlawful supply of cannabis material contrary to s 5(1) Misuse of Drugs Act (NT). The appellant Cooper pleaded guilty to one count of unlawful possession of cannabis plant material in a public place contrary to s 9 (1) and (2) (f) (i) Misuse of Drugs Act (NT) and three counts of unlawful supply of cannabis contrary to s 5 (1) Misuse of Drugs Act (NT).

[16] The appellant Cebu was sentenced to an aggregate of two months imprisonment ordered to be suspended after 14 days with an operational period of two years, on condition that she be subject to the supervision of the Department of Correctional Services for 12 months, that she not consume cannabis or any other illegal drugs and that she submit as required to testing for cannabis or other drugs. She appeals on the grounds the Chief Magistrate gave insufficient weight to the good character of the appellant and that he erred in giving too much to the need for specific deterrence in her case.

[17] The appellant Cooper was sentenced to an aggregate of three months in prison ordered to be suspended after serving three hours with an operational period of two years conditional upon her being subject to the supervision of the Department of Correctional Services for 12 months, that she not consume cannabis or any other illegal drug and that she submit as required for testing for cannabis and other drugs. Her grounds for appeal are that the Chief Magistrate erred in placing insufficient weight on her youth and that he also erred in placing insufficient weight on her good character and her personal circumstances. By leave, a third ground of appeal was added, namely that the Chief Magistrate erred in failing to accord weight for her cooperation with the authorities, as evidenced by a “letter of comfort” handed to the Chief Magistrate at the hearing.

[18] The circumstances of the offending were as follows. In early March 2005, the appellant Cebu was in Darwin and purchased one ounce of cannabis, approximately 28 grams, for the purpose of sending the cannabis to her daughter, the appellant Cooper. The appellant Cooper was to sell the cannabis within her community and both she and the appellant Cebu were to make extra money thereby. Cebu sent the cannabis to Cooper in a parcel to Maningrida. On receipt, Cooper divided the cannabis and sold it to Aboriginal people at Maningrida. In all, Cooper made $1,100 selling the cannabis. Cooper sent $400 of the proceeds of the sale to Cebu in Darwin.

[19] In early April 2005, Cebu purchased one ounce, approximately 28 grams, of cannabis and sent this cannabis in a parcel to her daughter, Cooper, in Maningrida. Again, Cooper divided this cannabis up and sold it in $50 lots for sale to Aboriginal people at Maningrida. From this lot of cannabis Cooper, in all, made $1500 of which she sent $600 to Cebu in Darwin.

[20] In May 2005, Cebu again purchased one ounce of cannabis, approximately 29 grams. This she sent in a parcel to Cooper at Maningrida. It was intended that Cooper sell this cannabis in like manner and send some money back to Cebu in Darwin. Maningrida police, acting on information, met Cooper at the Maningrida Airport on 4 May 2005. Cooper was there to collect the parcel sent to her by Cebu. Cooper admitted to police the parcel she had just collected contained cannabis. Cooper opened the parcel and surrendered the cannabis to police. On 10 June 2005, Cebu attended Maningrida Police Station after learning about police making inquiries. She participated in an electronic record of interview where she admitted the facts. When asked whose idea the venture was, Cebu said, “both of ours”.

[21] On 1 June 2005, Cooper was in Darwin and purchased one ounce of cannabis and divided it into 33 satchels. She wrapped the cannabis in some paper, bought some Red Rooster chicken. She concealed the cannabis amongst the chicken pieces. She asked her uncle, Raymond Pascoe, at Darwin Airport to take this cannabis back to Maningrida, to give it to someone to hold for her, that is Cooper, until she arrived back in Maningrida a couple of days later. Pascoe took the cannabis back to Maningrida for Cooper. Police, acting on information, spoke to Pascoe on arrival at Maningrida. Pascoe surrendered the cannabis to police telling them that Cooper had given the cannabis to him. Cannabis seized by police weighed 23.5 grams. On 5 July 2005, Cooper attended Maningrida Police Station and participated in an electronic record of interview where she admitted the facts. She said she intended to sell the cannabis she had given to Pascoe to take to Maningrida.

[22] The appellant Cebu is 40 years of age. The appellant Cooper, her daughter, turned 18 on Christmas Day 2004. Cebu was a widow with just the one daughter. Cooper had a two and a half year old daughter. Both Cebu and Cooper told police it was both their idea to sell the cannabis and make money. Both mother and daughter had limited, but irrelevant antecedents. The appellant Cooper had given substantial assistance to the authorities. Both had fully cooperated with police, made full admissions and pleaded at the earliest opportunity.

[23] All the appellants are traditional Aboriginal people who were local or connected to the particular community where the offending took place. Many had no prior court appearances at all. None had ever received a term of imprisonment. All were first offenders against the Misuse of Drugs Act (NT).

Penalties

[24] The maximum penalty for possession of cannabis in a public place contrary to s 9(1) and (2) (f) (i) Misuse of Drugs Act (NT) is imprisonment for two years or fine of $5,000.

[25] The maximum penalty for possession of a trafficable quantity of cannabis contrary to s 9(1) and (2) (e) Misuse of Drugs Act (NT) is imprisonment for five years or a fine of $10,000.

[26] The maximum penalty for unlawful supply of cannabis contrary to s 5 (1) and (2)(a)(iv) Misuse of Drugs Act (NT) is imprisonment for five years or a fine of $10,000.

[27] The Court of Summary Jurisdiction is constrained by s 22 Misuse of Drugs Act (NT) to impose a sentence no greater than imprisonment of two years or a fine of $10,000.

[28] None of the appellants fell within the sentencing provisions of s 37(2) and (3) Misuse of Drugs Act (NT) which requires a sentencing court to impose a minimum period of 28 days actual incarceration, unless having regard to the particular circumstances of the offence or the offender, it is of the opinion that such a penalty should not be imposed. Thus the full range of sentencing dispositions as prescribed by s 7 Sentencing Act (NT) was available to the Chief Magistrate.

General Principles of Appeals

[29] The principles that apply to an appeal against sentence are well known and summarised by the Full Court or the Federal Court of Australia in Tait (1979) 46 FLR 386 at 388:

“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 interferes only if it is shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error … .”

[30] The Chief Magistrate's exercise of his sentencing discretion is not to be disturbed on appeal unless error in that exercise is shown, the presumption being that there is no error: Anzac (1987) 50 NTR 6 at 11; Raggett, Douglas & Miller (1990) 50 A Crim R 41 at 42; Salmon v Chute (1994) 94 NTR 1 at 24.
General Sentencing Principles – Drug Offences

[31] In the course of sentencing Jason Joran, the Chief Magistrate said:

“I have been saying since I first came to the island and ever since for several years in all communities that people who sell drugs in communities can expect to go to gaol. That’s the message that I and most of the other magistrates are sending in a very strong voice. So it’s the voice of the court saying this and the voice of your people who say that these offences should be regarded seriously.” (emphasis added)

[32] In the course of sentencing Dale Pascoe, the Chief Magistrate said:

“I said to the previous young man before, who had in his possession a very small quantity of cannabis, that cannabis causes great harm within the community. Magistrates now, almost without exception, well probably without exception, are jailing people who bring cannabis into Aboriginal communities. The Supreme Court now, almost without exception, is also confirming such a penalty… I wouldn't be doing the right thing if I let you stay out of gaol and sent everyone to gaol. You see, in other words, being in a courtroom in the community puts on you that responsibility to set the example. I notice that you are now a liaison officer at the school. What message would it send to the school children of Maningrida if I were to let you off too lightly? It seems to me that not only do I need to teach you a lesson but I need to tell everybody here at Maningrida that importing cannabis for the purpose of sale in the community is not to be allowed and will be, in most cases, dealt with by a term of imprisonment.” (emphasis added)

[33] It can be seen from these remarks and from the dispositions in the matters of Maryanne Cebu and Rowena Cooper that the Chief Magistrate treated a term of actual imprisonment as some sort of tariff or starting point in relation to sentencing for the unlawful supply of cannabis on Aboriginal communities. In this, he was I think, in error. As I have said, none of the appellants fell within the sentencing provisions of s 37(2) and (3) Misuse of Drugs Act (NT). So the Chief Magistrate's sentencing discretion was not constrained to impose any particular penalty. The full range of sentencing dispositions as prescribed by s 7 Sentencing Act was available to the Chief Magistrate.

[34] There is no sentencing principle that first offenders who supply cannabis to or within Aboriginal communities must expect immediate imprisonment regardless of the circumstances. A sentence of imprisonment is only imposed when all other sentencing options have been eliminated, and when imposed, consideration has been given as to whether it should be suspended or not. Compare Wood v Samuels (1974) 8 SASR 465 at 468.

[35] As Justice von Doussa said in Freeman v Binnekamp (1987) 44 SASR 114 at 117:

“a stern deterrent warning to the offender and to others generally, can often be achieved by a sentencing package short of actual imprisonment, or even a term of imprisonment which is then suspended. A heavy fine, particularly in the case of a first offender, or an offender without a very relevant prior offence, could achieve that purpose.”

[36] It is appropriate to refer to some recent statements in this court and in the Court of Criminal Appeal concerning cannabis offences on Aboriginal communities.

[37] In R v Thomas Edward Wesley SCC 20103640, unreported, 20 September 2001, the 34 year old offender was sentenced to two years imprisonment for unlawful supply of a commercial quantity of cannabis, namely 760.8 grams, and one year imprisonment concurrent in respect of the unlawful supply of a trafficable quantity of cannabis fully suspended. In the course of my sentencing remarks, I said:

“Ordinarily, 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 these 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.”

[38] In my sentencing remarks, I also said

“This case is not as serious as a non-smoking white person for purely commercial reasons supplying cannabis to an Aboriginal community. Cases such as that, in my view at least, would require ordinarily, in the absence of some special circumstances, a term of actual imprisonment.”

[39] That case involved the sentencing provisions of s 37(2) and (3) Misuse of Drugs Act (NT).

[40] In Scott v Perry [2003] NTSC 26 unreported 20 March 2003, Mildren J dismissed an appeal from a sentence of four months and 14 days for the unlawful supply of a trafficable quantity of cannabis. The appellant was a 39 year old man of European descent who has lived in Maningrida since 1988. It was his second offence and because it was his second offence against the Misuse of Drugs Act, s 37(2)(b) and (3) required the court to impose a sentence of not less than actual imprisonment for 28 days unless the court was of the opinion that having regard to the particular circumstances of the offence or the offender such a penalty should not be imposed. The appellant's counsel conceded that the appellant had not discharged the onus on him to establish particular circumstances, and that, therefore, an actual sentence of not less than 28 days was inevitable.

[41] In his sentencing remarks, which must be considered in that context, Mildren J said:

“In this case, the circumstances of the offence were of an objectively serious nature. The supply was in an Aboriginal community for consumption in an Aboriginal community. As the learned Magistrate rightly observed, this was an aggravating factor.”

[42] Having referred, with approval, to my remarks in Thomas Edward Wesley, supra, Mildren J went on to say:

“I endorse those sentiments. In recent times, there has been a marked increase in offending in Aboriginal communities related to marihuana. Those who supply marihuana for ultimate consumption by those living on these communities, whether or not the consumers are themselves Aborigines, should expect to go to gaol.”

[43] In Musgrave v Liyawanga [2004] NTSC 53 unreported 6 October 2004 Martin (BR) CJ dealt with seven appeals by the Director of Public Prosecutions against seven identical penalties imposed by a magistrate sitting at Maningrida on 29 and 30 April 2004, in respect of offences of unlawful supply of cannabis to another person at Maningrida contrary to s 5(1) Misuse of Drugs Act. The magistrate had, without recording a conviction, released each respondent on his or her own recognisance in the sum of $500 to be of good behaviour for a period of 12 months. The appellant argued that the magistrate had erred in not recording a conviction.

[44] The Chief Justice dismissed the appeals. He said inter alia:

“[63] First, the remarks of the Magistrate might convey the impression that female persons who offend against the drug laws will be treated differently from male offenders. That impression is incorrect. Where their culpability is equal to that of male offenders, unless personal circumstances justify different treatment, female offenders are not entitled to extra leniency and should not expect to be treated differently from male offenders.”

[64] Secondly, the incorrect impression may have been conveyed by the Magistrate's decision that if one of a group of offenders succeeds in establishing a case for the exercise of a discretion not to record a conviction, necessarily the same result will be achieved for the other offenders. As I have said, each case must be considered individually. The fact that one offender makes out a case for the exercise of discretion does not necessarily mean that the other offenders will similarly succeed in not having a conviction recorded.

[65] Finally, the incorrect impression has been conveyed that female offenders who have not previously been in trouble and who bring cannabis into indigenous communities, or supply cannabis to members of their indigenous communities will not be convicted. That impression must also be corrected. Speaking generally, when a female indigenous offender has engaged in the serious criminal conduct of bringing cannabis into a community or of supplying cannabis to other members of a community, the mere fact that the female offender has not previously offended will not in itself justify the exercise of discretion not to convict. Ordinarily, in the absence of significant matters relating to the character, antecedents, age, health or mental condition of the offender, a conviction should be recorded.

[66] This court has repeatedly emphasised the seriousness of supplying cannabis to members of indigenous communities. Cannabis causes great damage and misery within the communities. General deterrence is of particular importance. The courts are not blind to the increasing prevalence of this offence, nor to the increasing involvement as couriers of persons, both male and female, who have not previously offended against the criminal law. It is readily apparent that those higher in the distribution chain are using these types of people with the lure of financial reward or reward in kind. 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.”

[45] There was no suggestion in that case that actual incarceration was an appropriate sentencing disposition for the unlawful supply of a quantity of cannabis that was neither commercial nor trafficable.

[46] In R v Hansen-Detaurbet SCC 20313650, unreported, 14 December 2004, Mildren J sentenced the offender to three months imprisonment, fully suspended for the unlawful supply of 10 grams of cannabis. In the course of his ex tempore sentencing remarks, Mildren J said:

“What you have to understand is that offences of this kind are, in fact, quite serious. You might think that this is only a very small amount of cannabis, but you see, the cannabis trade is a serious matter when it comes to Aboriginal communities and the courts have taken quite a stand in recent times in relation to those who supply marihuana to Aboriginal people or for that matter white people on Aboriginal communities.

There has been a marked increase in the last five to ten years in offending in Aboriginal communities which relates to marihuana and the courts have said that those who supply marihuana for ultimate consumption by those living on these communities, whether or not the consumers are themselves Aboriginal, should expect to go to gaol.

So that is what the courts have said and we have been sending out warnings for some time now about this type of offending because of the obvious problems that are created for Aboriginal communities whenever cannabis is sold within the community and as a result, we have indicated the selling of cannabis to Aboriginal communities is viewed very seriously and it will attract sentences that require offenders to serve periods of actual time in gaol.

That is what will be the normal way of disposing of these sorts of matters, or should be. Apparently however, the lower courts have not been getting the message.
According to what has been put to me today, the standard disposition of these sort of matters is fully suspended sentence. That is not what this court is saying at all. This court has been saying actual time in gaol unless there are good reasons otherwise; not a standard disposition of fully suspended sentences. That is not what this court has been saying and the wrong message has been given out by the magistrates, if that is the way they are handling these types of matters.
Now, however, I do not think I am going to start by making an example of you. A fully suspended sentence is still nevertheless a significant deterrent, although in my view it ought to be more and the word has got to go out and I give warning now that people who commit offences of this kind will got to gaol unless there are very good reasons why the matter should be fully suspended; that a fully suspended sentence should not be the ordinary way of disposing of this kind of matter.” (emphasis added)

[47] Mildren J's remarks were addressed to cases concerning the unlawful supply of cannabis to an Aboriginal community from outside the community for commercial gain. Such was the case before him. He was not addressing, it would seem, cases of unlawful supply from one Aboriginal to another within the community. Notwithstanding his stern remarks, Mildren J nevertheless fully suspended the sentence that he had imposed. As Mildren J said, a fully suspended sentence 'is still nevertheless a significant deterrent'. Particularly is this so, having regard to s 37 of the Misuse of Drugs Act (NT) which would apply for an offender who re-offended.

[48] In Wunungmurra [2006] NTCCA 3, the Court of Criminal Appeal upheld a sentence of two years in prison, suspended after serving three months for supplying a commercial quantity of cannabis, an offence which attracts the operation of s 37(2) and (3) Misuse of Drugs Act (NT). Martin (BR) CJ said in paragraphs [16] and [17] with the concurrence of Justices Mildren and Thomas:

“It is an aggravating feature of the appellant's offending that he was a leader of the community within which he supplied cannabis. The appellant abused his position of authority. Aboriginal communities must understand that notwithstanding a position of seniority within a community, those who commit serious offences will receive the appropriate penalty. General deterrence is a matter of significance in the exercise of the sentencing discretion.

Condemnation of the appellant's criminal conduct is also significant. For a number of years this court has emphasised that those who supply cannabis to members of Aboriginal communities are committing serious offences which have devastating effects within the communities. The appellant's offending was a particularly serious example of the crime of supplying cannabis. It was committed over a period of 12 months as part of a commercial operation involving large sums of money and the introduction of large quantities of cannabis into the Lake Evella Community.”

[49] In Musgrave v Yarllagulla [2006] NTSC 17 unreported 2 March 2006, a prosecution appeal against an order of a magistrate at Maningrida releasing the offender on a bond without a conviction in respect of the unlawful supply of 73.7 grams of cannabis was dismissed.

[50] None of the offending in the present appeals is in the category of offending discussed in Wesley, Scott v Perry or Wunungmurra. Each of the respondents pleaded guilty to offences that carried a penalty of imprisonment or fines. The imposition of a bond for a first offender for these offences is entirely within range. See for example Musgrave v Yarllagulla, Musgrave v Liyawanga, Dunn v Woodcock [2003] NTSC 24, a decision of Mildren J.

[51] The courts have long recognised that a term of actual imprisonment is to be the disposition of last resort. Particularly is this so in relation to first offenders. To arrive at a term of actual imprisonment a sentencing court ought first to have excluded all other non-custodial dispositions under s 7 Sentencing Act NT. See generally Turner v Trenerry (1997) 1 NTSC 21 at 38 and Gumurdul v Reinke [2006] NTSC 27. The Chief Magistrate appeared in each case, except that of Vigona, to be firmly minded towards imposing a term of actual imprisonment in order to address the need for general deterrence. However, the circumstances of the unlawful supply of cannabis to and within communities vary enormously. It is the duty of the sentencing court to consider all the circumstances of the offending and of the offender to determine whether the offending is serious enough to warrant actual imprisonment of the offender before the court. There is, as I have said, no principle that all persons found guilty of unlawfully supplying cannabis of whatever amount to or within Aboriginal communities must be incarcerated. Such is contrary to the whole tenor s 37 of the Misuse of Drugs Act (NT) and the provisions of s 7 of the Sentencing Act (NT). The Legislature itself has said via s 37 of the Misuse of Drugs Act (NT) what conduct prima facie attracts a minimum penalty of 28 days actual incarceration, in the absence of particular circumstances which justify why there should be no actual incarceration.

[52] The onus is on an accused person to establish such circumstances. That and s 7 of the Sentencing Act sit ill with any notion that people convicted of unlawfully supplying cannabis in circumstances to which s 37 does not apply, should got to gaol or prima facie go to gaol in the absence of special or particular circumstances. Insofar as Mildren J or the Chief Magistrate say differently, then they are, with respect, wrong.

[53] A sentencing court contemplating incarceration of an offender who has contravened s 5(1) Misuse of Drugs Act (NT) for unlawfully supplying cannabis in an amount of less than a commercial or trafficable quantity, needs to ask itself whether it is satisfied that no disposition other than that requiring the offender to serve a term of actual imprisonment, will in all the circumstances of the case sufficiently reflect any need for personal deterrence and the need for general deterrence. As I have said and re-emphasise, general deterrence can be achieved by dispositions other than actual incarceration.

[54] None of this is to belittle the seriousness of this type of offending. Cannabis is a scourge in Aboriginal communities. It consumes large quantities of money much needed for the necessities of life, leads to exploitation and neglect and furthers poverty, in terms both material and spiritual. It weakens culture. It promotes ill-health. Paranoia, schizophrenia and suicide amongst the Tiwi have all been, at least partially, attributed to cannabis use.

[55] The unlawful supply of cannabis to and within Aboriginal communities is to be condemned and deterred, strongly condemned and deterred. But this does not necessitate the incarceration of offenders, let alone first offenders. Of course, each case is to be regarded individually in it is own circumstances, as was emphasised by Martin (B.R.) CJ in Musgrave v Liyawanga [2004] NTSC 53.

[56] I now address the present appeals seriatim.

[57] The Joran appeal:

[58] In my opinion, a sentence of three months imprisonment with one month to serve was manifestly excessive. The quantity of cannabis was small and the financial gain a mere $380. Joran himself was addicted to cannabis and offended in order to fund his habit. Insufficient account was taken of the fact that he himself was a drug addict of long standing. He was 27 years of age and had been addicted to cannabis since the age of 12 or 13.

[59] He made full and frank admissions to police and it was an early plea of guilty. He had limited, dated and irrelevant antecedents. He had insight into his addiction and to the link to his own offending. He was willing to undertake counselling and assistance to overcome his addiction. He had strong family and community support. He had made significant community contributions and had a good work ethic and positive prospects for further education and training.

[60] His appeal is allowed and the sentencing orders of the Chief Magistrate are set aside. His offending merits the recording of a conviction, so his conviction will stand. His offending, though at the lower end of the scale, nevertheless is to be condemned. The appellant was aware of drug problems in the community, but nevertheless travelled to and from Darwin in order to obtain and supply cannabis within his community.

[61] Furthermore, he was conducting sales of cannabis within the sight of children. Significant allowance must be made for his long standing addiction. I would release him upon undertaking to be supervised by the Director of Correctional Services for a period of 18 months and to undergo and complete such drug rehabilitation course or courses as may be directed by the Director of Correctional Services.

[62] The next appellant is Dale Pascoe:

[63] In my opinion, a sentence of two months imprisonment, 14 days to serve, failed to give sufficient weight to the good character of the appellant. He, likewise, fully cooperated with police and made an early plea. He was a mature first offender with an extensive work history in prominent positions. He had ongoing involvement in the education and training areas. He is married with five children and has lived in Maningrida all his life.

[64] As in the previous appeal, the offending was at the lower end of the scale and whilst it justified a conviction, the case did not call for a term of actual incarceration. This appeal should be allowed, the orders of the Chief Magistrate set aside and the appellant re-sentenced. His conviction standing, I re-sentence him to one month imprisonment suspended forthwith with an operational period of 18 months for the purposes of the Sentencing Act (NT).

[65] The appellants Maryanne Cebu and Rowena Cooper:

[66] Of all these appeals, these appellants’ offending is the most serious. The offending was a planned enterprise between Aboriginal family members. It was ongoing, the profits were not insubstantial. Both offenders had irrelevant antecedents. Cooper was a young mother of a young child. Cooper had given assistance to the authorities by way of a letter of comfort, of which there is no need to say more than to repeat that substantial assistance to the authorities was given.

[67] Both fully cooperated with the police and made full admissions and pleaded at an early opportunity. Ms Cebu is a mature offender. Their offending clearly calls for convictions which are affirmed. There is nothing in the circumstances of either offender to suggest that actual incarceration was called for. First offenders against the Misuse of Drugs Act (NT), their offending was serious, which merited fully suspended sentences.

[68] One curious feature of the Chief Magistrate's disposition was that he suspended part of the two month sentence of imprisonment he imposed upon Cebu, conditional upon her not using unlawful drugs and undergoing testing for drugs, notwithstanding that she did not use illegal drugs. This, as counsel pointed out, demonstrated error. In the case of Cebu, the conviction is confirmed. The aggregate sentence of two months imprisonment is also confirmed, but ordered to be suspended forthwith for an operational period of two years conditional upon her being of good behaviour.

[69] As regards the appellant Cooper, her conviction is confirmed. The aggregate sentence of three months imprisonment is set aside and a two month term of imprisonment substituted therefor, but ordered to be suspended forthwith, with an operational period of two years, subject to the condition that she also be of good behaviour for that period. Whilst Cebu's offending was not as serious as that of Cooper, Cooper on the other hand gave substantial assistance to the authorities.

[70] I turn to the remaining appellant, Tina Vigona: In this case, the Chief Magistrate was specifically invited to exercise his discretion not to record a conviction. There were many mitigating factors relevant to this appellant. The offending was a minor example of the offence, the quantity of the drug being merely .4 grams and the implement was solely for her personal use. The appellant was an addict and nevertheless had insight into her drug use and its effect on herself, the community and her family.

[71] She was willing to seek assistance for herself. She had engaged in a community court process, whereby she exposed herself to comment and criticism by elders and peers from her community, beyond the formal court process. She had limited and dated antecedents. She made full admissions and a plea of guilty at the first opportunity. The offending had impacted on her employment resulting in her suspension without pay for a number of months pending resolution of the charges and actual financial difficulties.

[72] She was further due to appear before a tribunal code of conduct following the proceedings to decide her future in the workforce. She had children and had made substantial contribution to the community. The Chief Magistrate said that the case was on the cusp as to whether a conviction should be recorded and he ultimately exercised his discretion by recording a conviction. The question is not whether this court, on appeal, would have entered a conviction, but whether the Chief Magistrate erred in the exercise of his discretion.

[73] I am not satisfied that he did err in recording a conviction having regard to the matters in s 8 Sentencing Act (NT) and the Chief Justice's remarks in Musgrave v Liyawanga. On the other hand, it is plain enough, I think, that this appellant had made out ground two, that is, that the Chief Magistrate imposed excessively onerous conditions on the bond. I agree with counsel for the appellant that the conditions of supervision, counselling and drug testing were unnecessary and unduly onerous in view of the nature of the offending and the efforts made by the offender to rehabilitate herself.

[74] I also agree that the conditions far exceeded what was reasonable in the circumstances. See generally Dunn v Woodcock [2003] NTSC 24. As was said by Cox J in Williams v Marsh (1985) 38 SASR 313 at 316

“Obviously any additional conditions that a court might decide to include in any particular case should be appropriate to the circumstances of the offence and the offender in question and, as with all forms of punishment, be no more than the circumstances reasonably require. It will never be proper to impose conditions that will operate harshly or unreasonably, or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. It would not be a proper use of s 70ab for the court merely to take the opportunity offered by a man's conviction to attempt a general reform of his character that might be thought desirable. It is a power to be used with circumspection.”

[75] This appeal is allowed and in substitution for the orders of the Chief Magistrate, I confirm the conviction and order that she be released on a $400 own recognisance good behaviour bond for 12 months.