Henwood v Balchin [2011] NTSC 84

 

PARTIES:                                         HENWOOD, Maurisa Luanna Jane

 

                                                         v

 

                                                         BALCHIN, Vivien Lynette

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 43/2010; 21017942

 

DELIVERED:                                   20 October 2011

 

HEARING DATE:                             19 August 2011

 

JUDGMENT OF:                              BLOKLAND J

 

APPEAL FROM:                               MS FONG LIM SM

 

CATCHWORDS:

 

CRIMINAL LAW – APPEAL – appellant appeals against convictions and sentences imposed by the Court of Summary Jurisdiction.

Did Magistrate err in finding the police search was lawful and proper and misapply the discretion to exclude evidence? – nothing to suggest that a vehicle stopped and searched under the Liquor Act (NT) cannot subsequently give rise to a reasonable belief sufficient to enliven s120C Police Administration Act (NT) – search was positively in accordance with the public interest – ground one and two is dismissed.

Conviction - Findings of guilt – evidence in relation to charges 2, 6 and 7 was unsafe and unsatisfactory – appellant argues findings of guilt were not supported by the evidence – when reviewing the evidence as a whole the conclusion is supported by the evidence – conclusions of the learned Magistrate were open to be found beyond a reasonable doubt – ground five is dismissed – findings of guilt on all counts are confirmed.

Sentence - manifestly excessive –excessive to go beyond 28 day mandatory penalty in terms of time to be served – ground three and four upheld – appeal against sentence allowed in terms set out in paragraphs [125] – [129].

Liquor Act (NT) 95(2), 95(8), 101AN(2),

Misuse of Drugs Act (NT) s 2(e), s 3, 5(1), s 5(2)(a)(iv), s 5(3), s 9(1),          s 9(2)(f)(i), s 37,

Police Administration Act (NT) 120(c),

Sentencing Act (NT) s 103(1), s 103(2),

 

Daniels v The Queen [2007] NTCCA 9; Raggett, Douglas and Miller v R (1990) 50 A Crim R 41; Salmon v Chute (1994) 94 NTR 1; applied

 

Gumbaduck v Rothe [2011] NTSC 50; M v The Queen (1994) 181 CLR 487; R v Tait and Bartley (1979) 46 FLR 386; followed

 

Bunning v Cross (1978) 141 CLR 54; Joran & Ors v Wilson & Anor [2006] NTSC 46; Musgrave v Liyawanga & Ors [2004] NTSC 53; Nayidawawa v Moore; Nabegeyo v Middleton (2007) 178 A Crim R 473; referred to

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     Mr Mark Johnson

    Respondent:                                  Mr Damien Jones

 

Solicitors:

    Appellant:                                     Maleys Barristers and Solicitors

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       BLO 1113

Number of pages:                             32


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Henwood v Balchin [2011] NTSC 84

No. 43/2010; 21017942

 

 

                                                     BETWEEN:

 

                                                     Maurisa Luanna Jane Henwood

                                                         Appellant

 

                                                     AND:

 

                                                     Vivien Lynette Balchin

                                                         Respondent

 

CORAM:     BLOKLAND J

 

REASONS FOR JUDGMENT

 

(Delivered 20 October 2011)

 

Introduction

 

[1]       Maurisa Luanna Jane Henwood, appeals against convictions and sentences imposed by the Court of Summary Jurisdiction on 9 September 2011. The Notice of Appeal[1] sets out the following grounds:

1.       That the learned Magistrate erred in finding that the police search was lawful and proper;

2.       As a result of the finding that the police search was lawful and proper the learned Magistrate misapplied the discretion to exclude evidence obtained in consequence of an unlawful apprehension;

3.       That the sentence was manifestly excessive; and

4.       That the learned Magistrate erred in requiring two months to be served before the sentence was suspended.

[2]       At the commencement of the appeal the appellant sought leave to amend the notice of appeal.  The respondent did not oppose that application.

[3]       Leave was granted to include the following two further grounds:

5.       That the findings by the learned Magistrate that the appellant was guilty of charges 2, 6 and 7 were unsafe and unsatisfactory as those findings were not supported by the evidence; and

6.       That the learned Magistrate erred in failing to consider, or give adequate considerations to alternatives to imprisonment.

[4]       Initially it was indicated the appellant would be seeking to amend the grounds of appeal to include further grounds relating to issues relevant to the competency of counsel.  The amended outline of submissions on 18 August 2011 confirmed that those matters would no longer be pursued.

Proceedings before the Court of Summary Jurisdiction

[5]       Ms Henwood, along with her partner Mr Julius Kernan originally faced six charges.  Ms Henwood faced one further charge on complaint.

[6]       All offences were alleged to have occurred on 27 May 2010 at Maningrida in the Northern Territory of Australia.  Ms Henwood and Mr Kernan are Maningrida residents.

[7]       Counts 1 - 3 on information[2] charged the following:

1.   Unlawfully possessed cannabis, a dangerous drug specified in schedule 2, and the amount of the dangerous drug was a trafficable quantity, namely 159 grams contrary to s 9(1) & (2)(e) of the Misuse of Drugs Act (NT);

2.   Unlawfully supplied cannabis plant material, a dangerous drug specified in schedule 2, to another person, namely Lisa Kernan and Marcia Jones who were within a prescribed area, namely Arnhem Land Community contrary to s 5(1) & (2)(a)(iv) & 5(3) of the Misuse of Drugs Act (NT);

3.   Unlawfully supplied cannabis plant material, a dangerous drug specified in schedule 2, to another person, namely Lisa Kernan and Marcia Jones who were in a prescribed area, namely Arnhem Land Community contrary to s 5(1) & (2)(a)(iv) & 5(3) of the Misuse of Drugs Act (NT).

[8]       Count 4 on complaint[3] charged the appellant behaved in a disorderly manner in the Maningrida police station.

[9]       Counts 5, 6 and 7 on information[4] charged the following:

5.   Unlawfully possessed cannabis plant material, a dangerous drug specified in schedule 2, and the said Maurissa Henwood was in possession of the dangerous drug in a public place contrary to s 9(1) and (2)(f)(i) of the Misuse of Drugs Act (NT); and

6.   Unlawfully possessed cannabis plant material, a dangerous drug specified in schedule 2, and the said Maurissa Henwood was in possession of the dangerous drug in a public place contrary to s 9(1) and (2)(f)(i) of the Misuse of Drugs Act (NT); and

7.   Unlawfully possessed cannabis plant material, a dangerous drug specified in schedule 2, and the said Maurissa Henwood was in possession of the dangerous drug in a public place contrary to s 9(1) and (2)(f)(i) of the Misuse of Drugs Act (NT).

[10]     It appears that count 1 was withdrawn; however, it is unclear at what stage in the proceedings before the Court of Summary Jurisdiction this occurred. In any event the prosecution proceeded only in relation to counts 2, 3, 4, 5, 6 and 7.

[11]     The appellant, along with her partner Mr Kernan, pleaded not guilty to all charges.

[12]     The learned Magistrate indicated counts 3 and 7 were duplicitous, and told counsel for the prosecution he would be required to elect at the conclusion of the prosecution case.

[13]     It is necessary to summarise the facts relied on[5] in support of the charges.

[14]     On 27 May 2010 at Maningrida, Sergeant De Vos and Constable Steadman, who were in one marked police car, and Senior Constable Berger and another police officer in another marked police car, were conducting a rural patrol between Maningrida and Oenpelli. All four police officers departed Maningrida that morning.  Approximately 30 kilometres from Maningrida on the road to Oenpelli, police observed a red Toyota Hilux (‘the red car’) approaching inbound to Maningrida. The red car was followed closely by a white coloured Toyota Landcruiser Troop Carrier (‘the white car’).

[15]     The appellant, her partner Mr Kernan, and their children were identified as present inside the red car. Alicia Kernan, Marcia Jones, Belinda Kernan and Lisa Kernan were identified inside the white car.

[16]     Both cars were pulled over by police.  Several questions were asked of the passengers in both vehicles in order to ascertain whether there was any alcohol or illicit drugs in the vehicles. The answer was ‘no’.

[17]     Police then informed the occupants of both cars that they would be conducting a search of their vehicles for liquor.  As a result of that search a number of items of interest were located and all adult occupants of the two vehicles were arrested and conveyed to the Maningrida Police Station.

[18]     The facts in support of count 2 (a charge of supply), were that a quantity of cannabis was located in a shampoo/conditioner bottle found in the white car. The prosecution alleged that the content of the shampoo/conditioner was supplied by the appellant and Mr Kernan to the persons in the white car.

[19]     The facts in relation to count 3 (a charge of supply), were that a quantity of cannabis was located inside a large 2-litre tomato sauce bottle.  The cannabis was wrapped in plastic and was submerged in liquid apparently in order to mask the smell of the cannabis. The prosecution alleged the appellant and Mr Kernan supplied the bottle and its contents to the passengers in the white car.

[20]     The particulars in relation to count 4 (disorderly behaviour) were that while in custody at Maningrida Police Station the appellant became aggressive and yelled obscenities such as ‘white cunts, white fricks,’ and ‘fuck you cunts.’

[21]     Count 5 (a charge of possession), relates to a cannabis cigarette found in the space between the driver and the passenger seats in the front of the red car.

[22]     Count 6 concerns cannabis found inside a smaller tomato sauce bottle, located at the back of the front passenger seat in the red car.  The cannabis in the sauce bottle was submerged in liquid, apparently to mask its smell.

[23]     The final possession charge (count 7), is the cannabis in the large tomato sauce bottle in the white car.  It is the same cannabis as alleged in count 3.

[24]     The prosecution elected to proceed with count 7 (possession), rather than count 3 (supply).

[25]     Ultimately the decision of the Magistrate was that Mr Kernan was acquitted of all charges against him.  The appellant was found guilty of counts 2, 4, 6 and 7, and acquitted on count 5, (possession of the cannabis cigarette).

[26]     The appellant was convicted and sentenced to an aggregate term of five months imprisonment suspended after serving two months.  A twelve month operational period was set with conditions relating to supervision and a prohibition on the consumption of cannabis.

 

Grounds 1 and 2: The question of the allegedly Unlawful and Improper Search

 

[27]     The appellant argues the searches conducted by police of the red and white cars were unlawful or improper.

[28]     The Misuse of Drugs Act (NT) does not provide any specific power which would justify the initial search of the vehicles in these circumstances.

[29]     Section 120C of the Police Administration Act (NT) provides:

‘A member of the Police Force may, without warrant, stop, detain and search the following:

(a) an aircraft, ship, train or vehicle if the member has reasonable grounds to suspect that a dangerous drug, precursor or drug manufacturing equipment may be found on or in it…’

[30]     The evidence of the police officers in the Court of Summary Jurisdiction was that they had not formed the belief or had any reasonable grounds to form the basis of a suspicion that a dangerous drug may have been in either of the red or white cars.  As a result, it was argued by the appellant, and it is accepted, that on 27 May 2010 there was no basis for a drugs search to be carried out, at the time that the vehicles were stopped and the search commenced.

[31]     It is clear, however, s 95(2) Liquor Act (NT) provides:

‘…an inspector may, without a warrant: (a) do 1 or more of the following on a random basis for the detection of a relevant offence that has been, or is being or is likely to be, committed: (i) stop, enter, search and retain a vehicle…; (ii) stop, detain and a search a person…; (iii) search a thing in connection with the exercise of a power under subparagraph (i) or (ii)…’

[32]     Further s 101AN(2) Liquor Act (NT) provides:

‘…an inspector may, without a warrant: (a) do 1 or more of the following on a random basis for the detection of a relevant offence that has been, or is being or likely to be, committed:

(i) stop, enter, search, remove and retain a vehicle…(ii) stop, detain and search a person…(iii) search a thing in connection with the exercise of a power under subparagraph (i) or (ii)…’

[33]     The appellant argued that although each of the police witnesses testified that the vehicles were to be searched for liquor, (and was therefore permissible under s 95(2) Liquor Act (NT)), the police précis of facts contained a statement that was inconsistent with that testimony. The précis stated the search was conducted for the purpose of searching for illicit drugs. The précis was not tendered in the court below. When the contents of the précis were put to the police witnesses the only fact which could be established was that either Sergeant De Vos or Senior Constable Steadman authored the précis soon after the arrest, but neither officer was able to say with confidence which of them had.  Indeed the learned Magistrate in her reasons concluded:

This issue of the inconsistency between the précis on the evidence of the police officers does remain wholly-mostly unexplained.[6]

[34]     The respondent submitted that on the evidence this was clearly a situation where the vehicles were stopped under the provisions of the Liquor Act (NT) and that only upon finding cannabis did the focus of the search shift, a shift which the respondent argued, and I accept, was lawful under section 120C of the Police Administration Act (NT).  There is nothing to suggest, (other than the précis which was not tendered in evidence), that the initial purpose of stopping and searching the vehicles was for any other reason than the use of police powers under the Liquor Act (NT).  Indeed the learned Magistrate accepted the evidence of the police officers.[7]

[35]     The appellant, however, argued that the search conducted by police on this occasion went far beyond the powers of the Liquor Act (NT) in terms of what was reasonable and appropriate.   The appellant went further to submit that the explanation provided by police, (that the search was solely for liquor) was nothing more than a ‘ruse’. The appellant submitted the search, from the beginning, was intended by police officers to be a search for drugs.

[36]     It would have been highly impracticable, in terms of preserving evidence, for the police officers to have stopped the search once the cannabis was located in order to obtain a warrant.

[37]     In my view there is nothing to suggest that the stopping of the vehicle and searching by police was anything other than a random search under the Liquor Act (NT).  It was clear from the evidence of the police officers that when they observed the two vehicles travelling inbound towards Maningrida they did not initially recognise the occupants until they had been stopped and their intention to search the vehicle for liquor had already been established.

[38]     The suggestion by the appellant that the search went beyond the powers of the Liquor Act (NT) in my view is unfounded. Section 95(8) Liquor Act (NT) provides:

An inspector who seizes a container that the inspector reasonably believes contains liquor may immediately:

(a)  empty the container if it is opened; or

(b)  destroy the container (including its content) if it is unopened.

 

[39]     The vehicle, on the evidence of Mr Kernan and the police officers, was packed full to the brim with the belongings of the appellant and her family.  This would seem to require some effort to empty the vehicle in order to conduct the search effectively. The searching of bottles and containers for liquor is, in my view, a reasonable, proportionate and appropriate action in accordance with the power contained in s 95(8) Liquor Act (NT).

[40]     Further, there is nothing to suggest that a vehicle stopped and searched under the Liquor Act (NT) cannot, upon the finding of illicit drugs, subsequently give rise to a reasonable belief by police officers sufficient to enliven power under s 120C Police Administration Act (NT).

[41]     Ground one of the appeal is dismissed.

Discretion to Exclude Evidence

[42]     Ground two of the appeal raises similar issues to ground one.

[43]     The appellant submitted that the learned Magistrate erred in concluding the search was lawful and proper and subsequently erred in allowing the evidence obtained during the course of the search to be admitted.

[44]     The respondent submitted the decision of Bunning v Cross,[8] confirming the power of a court to refuse the admission of evidence arising out of the improper or unlawful actions of the police, was properly distinguished by the learned Magistrate in these proceedings on the basis that the learned Magistrate made a finding that the search was lawful.

[45]     Even if I am wrong in concluding the search was lawful, I would not in any event exclude the product of the search on the basis of the exercise of the discretion to exclude on public policy grounds.  The search in any event was positively in accordance with the public interest given the issues surrounding the prevalence of alcohol and cannabis in remote Aboriginal communities.

[46]     Ground two of the appeal is dismissed.

Findings of Guilt

[47]     The appellant argues the evidence in relation to charges 2, 6 and 7 was unsafe and unsatisfactory; the appellant suggests the findings of guilt were not supported by the evidence.[9]

[48]     The test for determining whether a verdict is unsafe and unsatisfactory is set out in M v The Queen:[10]

... the court must ask whether it thinks that upon the whole of the      evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question the court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the fact that juries had the benefit of having seen and heard the witnesses.

[49]     This principle applies equally whether a jury or Magistrate is the trier of fact. [11]  I will review the evidence in accordance with that principle.

[50]     The challenge to count 2 concerns the alleged supply of cannabis by the appellant to Lisa Kernan and Marcia Jones.  The only challenge in respect of counts 6 and 7 is the issue of possession, of the small and large tomato sauce bottles containing cannabis.

[51]     The learned Magistrate noted there was no challenge to the fact that the offence occurred in a prescribed area and no challenge to the forensic finding the substance was cannabis.[12]

[52]     The learned Magistrate made findings accordingly.  They are not disputed.

[53]     In relation to counts 2 (supply) and 7 (possession), the facts are clear that the large shampoo bottle and the large tomato sauce bottle were located in the white car.  The appellant submitted that the only evidential link between those two bottles and the appellant was the evidence given by the lay witnesses.  The appellant argued that the evidence of those witnesses was inconsistent and consequently could not be relied on.

[54]     The learned Magistrate, after considering the evidence concluded:[13]

The lay witnesses are all consistent in their evidence as to what was handed over to them and by whom and what was included in those vessels and in any event, so does Mr Kernan. He corroborates that to some extent in that he says that his wife got out of the vehicle on two occasions and provided something – he didn’t know what – to those people.

[55]     It is relevant to note that the Prosecutor elected to proceed only in relation to one count of supply.  That count concerns the cannabis in the shampoo bottle.

[56]     While there appears to be some evidence provided by the lay witnesses of two incidents of supply, I will only discuss the cannabis in the large tomato sauce bottle within the parameters of the charge of possession.

[57]     The Misuse of Drugs Act provides “Possession”:

In relation to a person, includes being subject to the persons control notwithstanding that the thing possessed is in the custody of another person.[14]

[58]     If the appellant exercised control over the cannabis contained in the large tomato sauce bottle at any time, whether at the time of the police search or before she provided the cannabis to Lisa Kernan and Marcia Jones, she may still be found guilty of the charge of possession.

[59]     In examination in chief Belinda Kernan gave evidence that at the creek crossing the appellant and her partner gave her a tomato sauce bottle to hold and that she knew that the tomato sauce bottle given to her contained cannabis but she was not sure how much.[15]

[60]     In cross-examination Belinda Kernan said that the cannabis inside the shampoo bottle belonged to the appellant.  When it was put to her that neither the shampoo bottle nor the large tomato sauce bottle belonged to the appellant and that none of the cannabis belonged to the appellant she responded “I don’t know.  Just (inaudible) tomato bottle (inaudible)”.[16]

[61]     Marcia Jones gave evidence that she was with Lisa Kernan when both the red and white cars travelled along the highway to second creek where she saw the appellant.  She explained that the appellant was at second creek towing a vehicle and that after the vehicle was towed something occurred in relation to a shampoo bottle on one occasion and a tomato bottle on a second occasion.[17]

[62]     In cross-examination Ms Jones conceded that the cannabis in the shampoo bottle was hers and Lisa Kernans.  Ms Jones also gave evidence which suggests that the appellant was not trustful of keeping the cannabis in her own possession. Ms Jones’ evidence is confusing but it appears at one point she explains that she gave the cannabis to the appellant who then passed it on to Lisa Kernan.

[63]     Mr Cymabeto Wurridia’s evidence was that he met up with the appellant and helped her and Mr Kernan tow their car. Mr Wurridia also said that the appellant had given bottles of shampoo to Lisa Kernan, with Marcia Jones present; after the bottles had been handed over to them the appellant drove off.  Mr Wurridia also gives evidence in relation to a second bottle that was given to Lisa Kernan by the appellant.

[64]     In cross-examination Mr Wurridia stated that at least some of the cannabis belonged to the appellant and that the cannabis in the shampoo bottle was Lisa Kernan’s and Marcia Jones’s cannabis.  When it was put to him that the police had asked him to blame the appellant for the cannabis he responded “for the big bottle (inaudible).”

[65]     In Re-examination Mr Wurridia “mostly”[18] concedes that the appellant gave Lisa Kernan the shampoo bottle and the big tomato sauce bottle; that he was drunk but that he saw this happen and that it was a truthful story.

[66]     The evidence of Lisa Kernan in examination in chief was that she and Marcia Jones met up with the appellant at the creek crossing.  When asked what happened at the creek Lisa Kernan responded “I got the shampoo bottle she gave me was for me and Marcia.”[19]  Lisa Kernan went onto to say that within the shampoo bottle was a small amount of cannabis and after the exchange they drove off.

[67]     Lisa Kernan goes on to explain that a large tomato sauce bottle was also given to her by the appellant a short time after the appellant had given her the shampoo bottle.  Lisa Kernan conceded that the tomato sauce bottle also contained cannabis but she did not know how much.  After both bottles had been given to her by the appellant she says that they drove off and were intercepted by police a short time later.

[68]     In cross-examination when asked again about the large tomato sauce bottle Lisa Kernan responded “tomato sauce bottle, that was Maurissa’s, she gave (inaudible).”[20]  When it was put to Lisa Kernan that all of the cannabis belonged to her and Marcia Jones she responded “Yeh, the one with the shampoo bottle (inaudible).”[21]  When it was suggested to her that none of the cannabis was the appellants she said “(inaudible) tomato sauce bottle (inaudible).” [22]

[69]     Julius Kernan gave evidence in his case that the appellant normally drove the red car as he had only just been released from prison and he did not have a licence.  He also said that as far as he knew there was no alcohol or cannabis in the red car.

[70]     In cross-examination Mr Kernan conceded that he and the appellant needed to stop at the creek on the drive back to Maningrida and that their car needed to be towed at one point with the help of Mr Cymabeto.  When he was asked if the appellant had given anyone anything at the creek he said he “…didn’t see nothing”.  However, when questioned further he made several admissions that he may have seen her give people “(inaudible) smoke or something – you know…”[23] or “…could’ve been a drink – you know,”[24] or “…must’ve gave a cigarette or something…”[25] or “yeah, it could’ve been cigarette because me and Maurissa we both smoke cigarettes – cigarettes.”[26]  When asked if it could have been cannabis he said “I don’t remember you know.”[27]  When questioned further about the possibility of it being cannabis he stated that it could not have been cannabis because he made a promise to himself and his kids to stop and that if it had been cannabis he would have smelled it.

[71]     Mr Kernan also gave evidence that the vehicle stopped three times; first at the crossing when they needed to be towed; the second time was when they pulled over on their own accord and the third time was when they were stopped by police.  He also said that on the first two stops the appellant got out of the car and that “she just went straight there and straight back.”[28]

[72]     The evidence provided by Mr Kernan and Marcia Jones leads to the conclusion that the appellant’s car stopped twice at the second creek prior to the police interception and that on both occasions the appellant got out of the red car and went over to Lisa Kernan and Marcia Jones.

[73]     The evidence of Marcia Jones, Mr Wurridia and Lisa Kernan appears to confirm that on two separate occasions cannabis was handed over by the appellant, at the second creek crossing, to Lisa Kernan and Marcia Jones; first in a shampoo bottle and then in the large tomato sauce bottle. 

[74]     In relation to the shampoo bottle (supply charge), the evidence of Marcia Jones and Lisa Kernan is clear to the extent that they accept that the cannabis contained in that bottle is theirs but that it was supplied to them by the appellant.

[75]     In relation to the tomato sauce bottle (possession), the evidence of Lisa Kernan and Marcia Jones is largely consistent to the extent that they both concede the tomato sauce bottle containing cannabis was given to them by the appellant.  Marcia Jones goes on to explain that the appellant did not trust to keep the bottle in her possession and Lisa Kernan states in her evidence that the cannabis in the tomato sauce bottle was still the appellant’s.  This evidence supports the charge of possession against the appellant, in respect of the large tomato sauce bottle. It need only be accepted that the cannabis was under the appellant’s control at some time; either at the time of police interception or prior to the cannabis being handed over to Lisa Kernan and Marcia Jones.

[76]     The respondent submitted that the learned Magistrate was correct to make a finding that the witnesses were consistent in their evidence when it came to what was handed over to them and by whom and what was included in the bottles.

[77]     When reviewing the evidence of the witnesses as a whole, in my view Her Honour’s conclusion is supported by the evidence.

[78]     Further, the respondent submitted that the appellant’s partner, Mr Kernan, at least to some extent corroborated the evidence of the other witnesses by conceding that his wife got out of the car on two occasions and provided something – he did not know what – to those two persons.  The evidence of Mr Kernan does, in my view, lead to that conclusion.

[79]     Her Honour found that Lisa Kernan and Marcia Jones were honest in their evidence based on the fact that they had implicated themselves in the possession of the cannabis and through that self implication they struck her Honour as people who were trying to tell the truth as far as they could recollect.  I see no reason to disturb that finding.

[80]     Aside from receiving the cannabis from the appellant, there is no other evidence of Ms Kernan and Ms Jones being involved in a criminal enterprise such that a warning and corroboration is required.  On a crucial part of the evidence, the appellant’s partner corroborated the appellant’s actions.

[81]     Having regard to the entirety of the evidence in relation to the large tomato sauce bottle and the shampoo bottle, I find that it was open to the learned Magistrate to conclude beyond reasonable doubt that the appellant gave those two bottles to Lisa Kernan and Marcia Jones on two separate occasions.  In my view, it was also open to the learned Magistrate to find beyond reasonable doubt that one of those occasions involved supply by the appellant and the other occasion involved the appellant possessing and exercising control over the cannabis at some time.

[82]     Some of the vagueness and inconsistency in the evidence is not uncommon in courts being conducted in Aboriginal communities such as Maningrida.  As is well known, often English is not the first language of witnesses.  Examining the evidence as a whole, I would not conclude the finding of guilt unsafe. Her Honour did have the advantage of seeing and hearing the witnesses in Maningrida.

[83]     I will now deal with the evidence in relation to count 6; the possession charge in relation to the cannabis in the smaller tomato sauce bottle.

[84]     The appellant argued that it was only the evidence of Sergeant De Vos who said the bottle was in the red car inside a shopping bag at the base of the passenger side door.  The appellant relies on the evidence provided by Hebrew Kelly who testified that he observed a police officer remove a tomato sauce bottle from the police vehicle and place it onto the bonnet of the red car.  The appellant argued that Mr Wurridia’s evidence corroborated this version and that the evidence of Mr Kernan did, to a degree, also corroborate the evidence of Mr Kelly.

[85]     The respondent submitted that there was no challenge to the conclusion that the appellant was the driver of the red car; the appellant was identified as the person who packed the red car and that the items located in the red car were the property of the appellant.

[86]     The only evidence provided in relation to the smaller tomato sauce bottle came from Mr Wurridia, Hebrew Kelly, Mr Kernan, Sergeant De Vos and Constable Stedman.

[87]     Sergeant De Vos gave evidence that the only vehicle he searched was the red car.  He explained that prior to commencing the search of the red car he asked the appellant whose car it was, who the items in the car belonged to and who packed the car.  He stated the appellant claimed ownership of the red car and its contents and admitted to having packed the car.[29]

[88]     During the course of his evidence Sergeant De Vos said he began his search at the front of the red car and continued his search to the rear of the red car.  He said that during the search he located a number of shopping bags with shopping items inside them.[30]

[89]     There are a number of inaudible’s in the transcript at this point, however, it is clear that Sergeant De Vos had located an item of interest and went on to remove the cap of that item and observed a clear liquid.[31]  He further stated that he also located a small “joint” on the centre console of the red car between the driver and passenger seats.[32]

[90]      Sergeant De Vos was clear in his evidence that Mr Kelly was not present during the search of either the red or white cars. He does concede that at some point he pulled over the vehicle Mr Kelly and David Bryan were travelling in, however, he went on to say that Mr Kelly’s car was never parked beside the appellant’s car.

[91]     Constable Stedman gave evidence that he located only two items containing cannabis in the white car during the course of the search of that car.[33]  He stated that he did not call Sergeant De Vos over to the white car after he located two items which he believed to contain cannabis.  He also stated Sergeant De Vos did not take one of those two items to the red car nor did he place it on the top of the red car.

[92]     Mr Kernan said that the police did not locate any items containing cannabis in the red car.  He said that Sergeant De Vos said words to him to the effect of ‘you wait there’ and that when Sergeant De Vos returned he said ‘I got you now Julius’ and was carrying the tomato sauce bottle (the one without a handle) in his hands.[34] 

[93]     The evidence of Mr Kelly was he saw the police take the sauce bottle from the police truck to the red car.

[94]     In cross-examination Mr Kelly conceded at one point that he only thought he knew what happened because Mr Kernan had told him what happened, however, Mr Kelly also said that he saw it and that he remembers it and that Mr Kernan did not tell him what happened that day.[35]

[95]     Mr Wurridia gave evidence that the police located the tomato sauce bottle in the back car (white car) and put it into the front car (red car).[36]

[96]     On the whole of the evidence, in relation to the small tomato sauce bottle, there appear to be three versions of events. First, the evidence of Sergeant De Vos that it was found in the red car and the evidence of Constable Stedman that no third item of interest was found in the white car. Second, the evidence of Mr Kernan and Mr Wurridia that the item was found in the white car and taken to the red car. Third, on the evidence of Mr Kelly the item was removed from the police car and taken to the red car.

[97]     The appellant submitted the decision of the Magistrate to reject the evidence of Mr Kernan, Mr Kelly and Mr Wurridia regarding the smaller tomato sauce bottle was based only on the conflict with the police officers’ evidence and the fact that neither could recall Mr Kelly being present during the search.

[98]     Her Honour dealt with this evidence in her reasons on the voir dire stating:

Neither the Sergeant nor the Constable can remember Mr Kelly being present nor that Mr Kelly was there or his car was there. That is in conflict with Mr Kernan’s evidence and his clear instructions to his counsel. Mr Kelly’s evidence, in my view, must be dismissed completely. He is unreliable and unbelievable. If I accepted what he would have the court believe I would have to accept that the bottle was placed in the police car prior to the police going on rural patrol. The bottle was placed in the police car with the purpose of placing it into somebody else’s vehicle and the purpose of framing that person. I do not accept that to be the situation.

[99]     Further to Her Honour’s reasons, there is strong evidence linking the two containers of cannabis.  The cannabis allegedly “planted” by police in the red car was in a similar container to that in count 7, (being the large tomato sauce bottle); the liquid in which the cannabis was immersed in the smaller tomato sauce bottle appeared to be the same substance as that found in the shampoo bottle and the larger tomato sauce bottle.  This leads to the conclusion that all containers had been handled by the same person.

[100]   In my view, reviewing the whole of the evidence, it was open to the learned Magistrate to find beyond a reasonable doubt that the smaller tomato sauce bottle was located in the appellant’s vehicle, with other belongings which the appellant owned.

[101]   Accordingly, I find that the findings of guilt in respect of charges 2, 6 and 7 were well supported by the evidence and cannot be viewed as unsafe and unsatisfactory.

[102]   Ground five is accordingly dismissed.  The findings of guilt on all counts are confirmed.

The Appeal Against Sentence

[103]   Grounds 3, 4 and 6 concern the sentence imposed.

[104]   The applicable maximum penalties are as follows:

1.  Count 2 (supply) – 9 years imprisonment;

2.  Count 6 (possession) – 2 years imprisonment or 40 penalty units; and

3.  Count 7 (possession) – 2 years imprisonment or 40 penalty units.

[105]   The appellant was sentenced on 9 September 2010 at the conclusion of the hearing. 

[106]   The sentences imposed by the learned Magistrate were as follows:

1.  Count 2 – convicted and sentenced to three months imprisonment;

2.  Count 6 and Count 7 – convicted on both counts and sentenced to an aggregate penalty of two months imprisonment.

[107]   The sentence for counts 6 and 7 was cumulative on the sentence imposed in respect of count 2. A total head sentence of five months imprisonment was imposed which was to be suspended after serving two months imprisonment. An operational period of 12 months was imposed subject to conditions.  

[108]   It is well established[37] that an appellate court can only interfere with the sentence imposed if it can be 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 proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.

[109]   It is fundamental that a trial judge’s exercise of sentencing discretion is not to be disturbed on appeal, unless error in that exercise is shown. The presumption is that there is no error.[38]

Ground 3 – Manifestly Excessive

[110]   With reference to this ground the respondent submitted the sentences were well within range given the maximum penalty for the offence of the supply of cannabis in Aboriginal communities; the harmful effects of cannabis in Aboriginal communities as recognized in the authorities: Daniels v The Queen;[39] and the prevalence offending of this type.

[111]   Her Honour with respect correctly had regard to all of those factors.  She acknowledged the amount of cannabis was not a commercial or trafficable amount however she said it was “not a small quantity’.  Her Honour also said “I also note that you did not plead guilty and that you put the Crown through the – and the witnesses, particularly the lay witnesses, through the trauma of having to go through a hearing”.  On the appellant’s circumstances Her Honour said very little; that the appellant had a young family and that her absence (in gaol) would no doubt cause some problems.  Her Honour also noted the appellant was not someone who uses the substance or has an addiction hence bringing cannabis into the community must “feed other people’s addictions”.  Her Honour ordered supervision, including a condition that the Appellant not consume cannabis, which would appear to run counter to the information before the Court on the appellant’s use of cannabis.

[112]   Importantly, the respondent also points out the learned Magistrate was entitled to take into account the Appellant’s previous relevant conviction in 2003 for possession of a trafficable quantity of cannabis.

[113]   The authorities illustrating the harm done in Aboriginal communities are acknowledged, in particular, as stated in the judgment of Martin (BR) CJ and Riley J (as he then was) in Daniels v The Queen where their Honours state:

The criminal courts of the Northern Territory are all too familiar with the devastating effects of cannabis within Aboriginal communities across the Territory.  It is not correct to view such offending as victimless.  There are countless victims.  They are users of cannabis within the Aboriginal communities and others in those communities who are adversely affected by the devastating impacts upon users.  In particular, the children of heavy users suffer dreadfully.

[114]   Their Honours also made the point that the role of sentencing standards must be properly understood.  They do not amount to a fixed tariff, departure from which will inevitably lead to error.[40]

[115]   The principles discussed in Daniels v The Queen are relevant to all cases of bringing cannabis into Aboriginal communities.  The point must be made however, Daniels involved substantial amounts of cannabis and commercial proceeds of over $11,000.

[116]   Two of the counts the appellant was being dealt with were counts of possession with no aggravating features save that it occurred in a “public place”, with no commercial aspect to them.  They were not trafficable or commercial amounts.  The supply charge, although some money potentially could have been made by the Appellant was not at all of the order of the larger scale supplies.  The amount of cannabis in the shampoo/conditioner bottle, the subject of the supply charge was 56.65 grams.  Although serious, it is not at all of the magnitude of many of the supply charges in the Northern Territory, particularly those that in part inform the basis for decisions such as Daniels v The Queen.

[117]   During sentencing submissions there was some confusion expressed as to precisely which charges were to be sentences for supply and which for possession.[41]  This appeared to be clarified, however the sentencing remarks overall appear to be directed to supplying cannabis in the context of the nine year maximum penalty.  The prosecution elected only to proceed with one count of supply.  The counts of possession cannot in my view be regarded as high order examples of offending of that type. They do not concern significant amounts of cannabis.  In as much as they are aggravated by being possession in a “public place”, the “public place” was not highly populated.

[118]   The appellant was subject to 28 days mandatory imprisonment under s 37 Misuse of Drugs Act (NT), unless “particular circumstances” were found by the Court.  Her Honour did not address “particular circumstances”, however I would not interfere with the sentence on that basis.  It was for the appellant to place that material before the Court to persuade on that point.  The submissions were brief.  The appellant did not have the benefit of a plea.

[119]   The personal factors Her Honour was told about was that the Appellant was 34 years of age; she had one relevant previous conviction from 2003, aside from that her previous court matters related solely to driving offences.  She was married with six children between herself and her husband.  One child was to attend ceremony in the next few days and both parents would be required.  Some of the children were very young and in need of her care.  The appellant suffered from a heart condition which fluctuated in severity; she has had to attend hospital interstate and at times is debilitated by the condition requiring assistance with “every day things”.[42]

[120]   Although these factors were not sufficient to ground a finding of “particular circumstances”, they were matters that ought to have sounded seriously in general mitigation.  Although the health problems were put hastily from the bar table, they were not challenged and were significant in informing the sentencing process.  Further, the gap since the last offending means a sentencing court may moderate what would otherwise be a more severe sentence.  Her Honour did not refer to this.  Given the gap in offending, the prospects of the appellant successfully completing a community order would be reasonable to high.

[121]   Through the fault of no-one, the sentencing part of the proceedings does appear to have been rushed; such is the nature of a busy bush court such as Maningrida.  The decision to make the sentence for the possession counts cumulative was made after a query from counsel,[43] bringing the total sentence to five months imprisonment.  Although her Honour’s reference to the lack of a plea would have been meant to acknowledge the appellant would not receive a discount that would otherwise flow had there been a plea of guilty, the further emphasis on the trauma of witnesses having to go through a hearing, appears to have led to a more significant penalty than would ordinarily be expected, especially ordering accumulation of sentences for the possession counts.  In my view there was not time for a meaningful consideration of totality and overall the sentences, in terms of the prison sentences ordered to be actually served have been shown to be excessive.

[122]   The comparative authorities relied on by the appellant essentially establish different points for divergent circumstances, not readily comparable here.  Those authorities do however establish a range of penalties that may be available, in particular in relation to possession that is not subject to the nine year maximum penalty.[44]

[123]   Even in relation to the “supply” count, there must still be a proper assessment of proportionality.  Given the personal circumstances of the appellant and the relatively small amount of cannabis involved, in my view it was excessive to impose a term of imprisonment to be actually served beyond the mandatory term.

[124]   In my view this ground has been made out, notwithstanding “particular circumstances” has not been established.  The appellant will need to serve the balance of the 28 days imprisonment not already served.

[125]   I will quash the sentences for counts 2, 6 and 7.

[126]   On count 2 the appellant is convicted and sentenced to three months imprisonment.

[127]   On counts 6 and 7 the appellant is convicted and sentenced to two months aggregate imprisonment.

[128]   All sentences are to be served concurrently and are to be suspended after serving 21 days being the 28 days required under s 37 Misuse of Drugs Act (NT) less the time already spent in custody between sentence and bail being granted on 16 September 2011.

[129]   The appellant will be subject to a 12 month operational period from the date of release.  I will not order supervision as no report was requested in the Court below as is required under the Sentencing Act (NT).[45]  Should the appellant commit an offence punishable by imprisonment including obviously any drug offences, she will be ordered to serve the balance of the sentence.

[130]   The penalty for count four (on complaint) remains as a conviction with no further penalty.

[131]   Ground six argues that the learned Magistrate erred in failing to consider, or give adequate consideration to, alternatives to imprisonment. There was no express consideration given to alternatives to imprisonment.  This Court was told Her Honour would have been aware that home detention was not available at the time at Maningrida.  I accept that submission.  It must also be acknowledged that simply because alternatives to imprisonment were not discussed, this does not mean Her Honour did not consider them.  Although some factors relevant to this ground of appeal overlap with ground three, I am not satisfied this ground by itself is made out.  Accordingly ground six is dismissed.

[132]   Ground four of the appeal argues that the learned Magistrate erred in requiring two months to be served before the sentence was suspended.  In my view this has been dealt with and subsumed within ground 3, manifestly excessive.  On the basis of the sentence being disproportionate in all of the circumstances, including the appellant’s subjective circumstances, it was in my view excessive to go beyond the 28 days mandatory penalty in terms of time to be served.  I would uphold this ground.

[133]   I confirm the appeal against conviction is dismissed.  The appeal against sentence is allowed in terms set out at paragraphs [125] – [129] above.

 

________________________



[1]         Filed 15 September 2010.

[2]         Dated 28 June 2010.

[3]         Dated 7 September 2010.

[4]         Dated 8 September 2010

[5]         Derived from the transcript of proceedings before the Court of Summary Jurisdiction on 8 September 2010, Maningrida, supplemented by submissions before this Court.

[6]         T, 9 September 2010 at 39.

[7]         T, 9 September 2010 at 39.

[8]         (1978) 141 CLR 54.

[9]         Ground 5.

[10]        (1994) 181 CLR 487.

[11]        See Gumbaduck v Rothe [2011] NTSC 50 per Mildren J at [19].

[12]        T, 9 September 2010 at 56.

[13]        T, 9 September 2010 at 57.

[14]        S 3 Misuse of Drugs Act (NT).

[15]        T, 9 September 2010 at 57.

[16]        Ibid

[17]        T, 8 September 2010 at 10.

[18]        T, 8 September 2010 at 17.

[19]        T, 8 September 2010 at 18.

[20]        T, 8 September 2010 at 20.

[21]        Ibid.

[22]        T, September 8 2010 at 20.

[23]        T, September 9 2010 at 47.

[24]        T, September 9 2010 at 48.

[25]        T, September 9 2010 at 49.

[26]        T, September 9 2010 at 49.

[27]        T, September 9 2010 at 48.

[28]        T, September 9 2010 at 50.

[29]        T, 9 September 2010 at 3.

[30]        T, 9 September 2010 at 3.

[31]        T, 9 September 2010 at 3.

[32]        T, 9 September 2010 at 7.

[33]        T, 9 September 2010 at 21.

[34]        T, 9 September 2010 at 26.

[35]        T, 9 September 2010 at 28.

[36]        T, 8 September 2010 at 17.

[37]        R v Tait and Bartley (1979) 46 FLR 386 at 388.

[38]        Salmon v Chute (1994) 94 NTR 1 at 24 where Kearney J repeated comments he had made in Raggett, Douglas and Miller v R (1990) 50 A Crim R 41 at 42.

[39]        [2007] NTCCA.

[40]        Daniels para [29].

[41]        T, 9 September 2001 at 60 – 61.

[42]        T, 9 September 2010 at 59.

[43]        T, 9 September 2010 at 61.

[44]        Nayidawawa v Moore; Nabegeyo v Middleton (2007) 178 A Crim R 473; Musgrave v Liyawanga & Ors [2004] NTSC 53; Joran & Ors v Wilson & Anor [2006] NTSC 46.

[45]        S 103(1) and (2).