Wauchope v Musgrave [2006] NTSC 77

PARTIES: WAUCHOPE, Wayne

v

MUSGRAVE, Raymond Mark

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA 36 of 2006 (20605911)

DELIVERED: 22 September 2006

HEARING DATES: 22 September 2006

EX TEMPORE JUDGMENT OF: MARTIN (BR) CJ

APPEAL FROM: COURT OF SUMMARY JURISDICTION, 20605911, 21 June 2006

CATCHWORDS:

CRIMINAL LAW
Criminal law – appeal – Justices Appeal – supply kava – appeal against sentence – sentence manifestly excessive – level of sentences for kava offences – appeal allowed – appellant resentenced.

REPRESENTATION:

Counsel:
Appellant: D Cash
Respondent: J Down

Solicitors:
Appellant: North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Mar0622
Number of pages: 4

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

Wauchope v Musgrave [2006] NTSC 77
No. JA 36 of 2006 (20605911)

BETWEEN:

WAYNE WAUCHOPE
Appellant

AND:

RAYMOND MARK MUSGRAVE
Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 22 September 2006)

[1] This is an appeal against a sentence of 18 months imprisonment, suspended immediately, imposed for the offence of supplying kava. In substance, the appellant submitted that the sentence is manifestly excessive.

[2] The facts can be stated briefly. Prior to committing the offence the appellant met with a co-offender, known to the appellant as Joe. 16 Garbags of kava were supplied by Joe to the appellant. Each Garbag contained 100 x 42 gram deal bags of kava giving a total weight of 4.2 kilograms per Garbag and a combined weight of 67 kilograms.

[3] The appellant’s role was to arrange for the kava to be sold at Ramingining. The appellant Joe would share the proceeds. The appellant asked the nephew of his wife to sell the kava for him. The nephew agreed and the appellant transported the kava and his nephew to an outstation near Ramingining where the nephew took control of the 67 kilograms of kava. The appellant told the nephew to sell the kava for $30 per 42 gram deal bag.

[4] The appellant returned to Darwin. The nephew was apprehended selling the kava. In about five days the nephew had sold approximately 483 deal bags of kava at $30 each giving total proceeds of $14,485. That cash was seized. 45 kilograms remained to be sold.

[5] When interviewed by the police the appellant said he expected to receive about $10,000 as his share of the proceeds of sales. If all of the 1600 deal bags had been sold at $30 each the total proceeds would have been $48,000. At the time of the offending Ramingining Kava Licenses had been suspended by reason of threats made to the manager of the kava shop. The period of suspension allowed black market kava suppliers to return the community.

[6] At the time of sentence in June 2006 the appellant was 43 years of age. He was born and grew up on Croker Island where his father is a traditional owner. The appellant left school at the age of 13 and joined the military when 17 where he remained for ten years. He became a full corporal and was an indigenous mentor to younger soldiers.

[7] After the appellant left the army he became an ATSIC chairman for three years.

[8] The appellant left ATSIC in the late 1990s and commenced working for the Northern Territory Government on a voluntary basis furthering Aboriginal land rights issues.

[9] The appellant is a man of prior good character having had a single conviction for speeding in 1990. He has a good work record. The appellant became involved in the offending through a desire to obtain funds for the assistance of his 15 year old niece who was dying of leukemia. The appellant is a man with excellent prospects for the future and his rehabilitation.

[10] It was well within the sentencing discretion to impose a sentence of imprisonment. The critical question is whether the period of 18 months was manifestly excessive. In my opinion, having regard to the general level of sentences imposed for offences involving kava, a period of 18 months was manifestly excessive. If an allowance in the order of 25% is made for the plea of guilty, the starting point would have been approximately two years. The starting point is excessive.

[11] The appeal is allowed and the sentence of 18 months imprisonment is set aside. Notwithstanding the appellant’s good character and plea of guilty and the other matters of mitigation to which I have referred, in my opinion the objective seriousness of the offending requires the imposition of a sentence of imprisonment. It must be remembered that the appellant abused his position of trust and authority in arranging for the sale of the kava.

[12] But for the appellant’s plea of guilty I would have imposed a sentence of nine months imprisonment. After allowance for the plea, I impose a sentence of seven months imprisonment suspended immediately upon condition that the appellant enter into a bond to be of good behaviour for a period of 12 months from today. That period is the operational period for the purposes of the Sentencing Act.

[13] In arriving at the sentence I have been guided by the general level of penalties imposed for offences involving kava over a number of years. It appears to me that the level of penalties is very moderate. If such offences continue to be prevalent, it may become necessary to consider whether the general level of penalties should be increased.

[14] I direct that the appellant is to enter into the bond within a period of seven days from today and that can be done at the police station nearest to the appellant’s current residence.
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