Campbell v Westphal [2012] NTSC 09

 

PARTIES:                                         CAMPBELL, Margaret

 

                                                         v

 

                                                         WESTPHAL, Lindsay

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          21128849

 

DELIVERED:                                   29 FEBRUARY 2012

 

HEARING DATES:                           23 FEBRUARY 2012

 

JUDGMENT OF:                              KELLY J

 

APPEAL FROM:                               G BORCHERS SM

 

CATCHWORDS:

 

CRIMINAL LAW – Appeal against sentence – Selling liquor without a permit – Sentence manifestly excessive – Consideration of options other than imprisonment – Whether magistrate considered suspended sentence  – Weight given to the principle of general deterrence  – Weight given to the principle of totality – Appeal dismissed. 

 

Misuse of Drugs Act (NT)

Liquor Act (NT)

Sentencing Act s(5)(2)(a) (NT)

 

R v Tait (1979) 24 ALR 473; Van Toorenburg v Westphal  [2011] NTSC 31; House v The King (1936) 55 CLR 499; Jambajimba v Dredge (1985) 33 NTR 19; Musgrave v Liyawanga & Ors and Hales v Stewart [2004] NTSC 53; Daniels v The Queen [2007] NTCCA 9, followed.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Bartusevics v Fisher (1973) 85 ASR 601, applied.

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     Z Craven

    Respondent:                                  I McMinn

 

Solicitors:

    Appellant:                                     Central Australian Aboriginal Legal Aid Service

    Respondent:                                  Office of Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       KEL 12002

Number of pages:                             8


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT ALICE SPRINGS

 

Campbell v Westphal [2012] NTSC 09

No. 21128849

 

 

                                                     BETWEEN:

 

                                                     MARGARET CAMPBELL

                                                         Appellant

 

                                                     AND:

 

                                                     LINDSAY WESTPHAL

                                                         Respondent

 

CORAM:     KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 29 February 2012)

 

 

[1]       The appellant Margaret Campbell pleaded guilty to three counts of selling liquor without a permit, and on 2 September 2011 she was sentenced in the Court of Summary Jurisdiction to imprisonment for one month. She has appealed to this court against that sentence on a number of grounds, which are set out below.  On 23 February 2012 I dismissed the appeal and indicated that I would publish my reasons at a later date. These are those reasons.

[2]       The principles governing appeals are well known.  A 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 be shown that the sentencing judge or magistrate was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.[1]  The sentence is presumed to be correct.[2]

[3]       Ground 1 on the Notice of Appeal is that the sentence was in all the circumstances manifestly excessive.  This ground is discussed below.

[4]       Ground 2 is that the learned magistrate erred by failing to consider options other than imprisonment.  This is simply factually inaccurate: the magistrate did consider (and reject) at least one alternative disposition.  Counsel for the appellant urged the learned magistrate to impose a fine or a fully suspended sentence.  The magistrate specifically considered and rejected a fine as inappropriate.  The question of a suspended sentence is discussed below in connection with Ground 4.

[5]       Ground 3 is that the learned magistrate failed to give sufficient weight to the appellant’s lack of antecedents, early guilty plea and personal circumstances.  In fact the learned magistrate explicitly mentioned taking into account the appellant’s guilty plea and personal circumstances in arriving at an appropriate sentence.  What weight he puts on these considerations is a matter for the sentencing Magistrate’s discretion, unless it appears that he must have fallen into error because the sentence is manifestly excessive in the circumstances.  There was nothing in the appellant’s personal circumstances which made a sentence of actual imprisonment inappropriate and she did have a criminal record, albeit one which was described by her counsel as not involving “any type of serious criminal offending”. It included one prior conviction for an offence under the Liquor Act for possessing alcohol in a prescribed area.

[6]       Ground 4 is that the learned magistrate failed to consider (as he was obliged to do) whether or not to suspend, or partially suspend the appellant’s sentence.  If that were the case, then that would amount to an error of principle and I would be obliged to remit the matter to the learned magistrate to re-sentence according to law; to re-sentence the appellant myself; or, if I were of the opinion that, notwithstanding demonstrated error, there had been no substantial miscarriage of justice, to dismiss the appeal. 

[7]       If the magistrate did consider whether to suspend or partially suspend the appellant’s sentence, and determined that he would not do so, then it would not be open to me to interfere with that exercise of the learned magistrate’s discretion unless it were shown to be so unreasonable that no reasonable magistrate could have arrived at it.[3]

[8]       The first question, therefore, is whether the learned magistrate did fail to consider whether to suspend all or part of the appellant’s sentence.  I do not think that he did.

[9]       It is not to be assumed that the failure to mention a sentencing principle means that it has been overlooked.[4]  In particular, magistrates are working under pressures which mean that they are simply unable to give the kind of detailed reasons which might be expected of a court delivering a reserved judgment, and sentencing remarks delivered in such circumstances should not be subjected to the same degree of critical analysis as the words in a considered reserved judgment.[5]  An appellate court is entitled to assume that a magistrate has considered all matters which are necessarily implicit in any conclusions which he has reached.[6]

[10]     In this case, the last submission made by defence counsel to the sentencing magistrate was that either a fine or a suspended sentence would be appropriate.  The learned magistrate specifically considered and rejected a fine and then imposed a term of actual imprisonment.  It is implicit in that disposition that he rejected the submission that a suspended sentence was appropriate.  I am not prepared to assume that the magistrate considered one of the options presented to him and not the second option presented to him by counsel in the very next sentence. 

[11]     If I had concluded that the magistrate did not turn his mind to the question of whether to suspend the sentence, I would nevertheless have dismissed the appeal because, notwithstanding that error, there has been no substantial miscarriage of justice.  It follows that I do not consider the decision not to suspend the sentence to be unreasonable in the requisite sense. That decision was well within the proper exercise of the learned sentencing magistrate’s discretion. 

[12]     Ground 5 complains that the learned magistrate gave too much weight to the issue of general deterrence when sentencing the appellant.  I do not agree.  I quote from the leaned magistrate’s sentencing remarks.

“You set out on this enterprise for profit.  As you are aware; as the bench in these courts are aware; as people in this community are aware; alcohol abuse is an insidious disease which affects almost every aspect of life in this community.  Alcohol abuse costs this community an extremely large amount of money, not only in terms of taxpayers’ funds being spent on law enforcement and gaols, on Department of Community Corrections, but also on the health and wellbeing of members of this community, many of whom abuse alcohol – sorry, a significant minority of whom abuse alcohol and then require the services of the Department of Health and other taxpayer funded organisations in this community.

You could not, being a member of this community, not be aware of the insidious nature of alcohol abuse, and yet knowing that, you sought to profit from it by offering unfortunate individuals a way in which to purchase alcohol.  These people, I assume, were unable to walk the less than 50 yards to the bottle shop to purchase alcohol because of some order that may have prevented them from doing so or, at the time that you made your sales, the bottle shop was not open and these people were in such desperate addiction to alcohol that they were prepared to pay any amount of money to obtain alcohol.  I infer that you preyed upon their misfortune in order to profit.

This is a matter in which I must give serious consideration to the considerations of general deterrence.  This community must know that those that seek to profit from the unfortunate position of people who are addicted to alcohol will pay a significant penalty.”

 

[13]     This description of the situation in our community and of the circumstances of the appellant’s offending is completely unexceptional, and the learned magistrate’s conclusion not simply lacking in error, but inescapable.

[14]     This Court has often emphasised the importance of general deterrence in sentencing offenders for offences under the Misuse of Drugs Act involving the supply of illicit drugs, in particular the supply of cannabis into Aboriginal communities, because of the very great degree of harm done by the supply of those drugs, both in terms of human misery and economic harm to individual families when the drugs are sold at inflated prices, and economic harm to the community.[7]  The same considerations apply, for the same very good reasons, to offences of the kind to which the appellant pleaded guilty involving, as her offences did, the illegal supply of alcohol to people who, it can be inferred from the circumstances, were made desperate by addiction.

[15]     Ground 6 is that the learned magistrate failed to give sufficient weight to the principle of totality in sentencing the appellant.  I cannot agree.  The appellant had pleaded guilty to three counts of selling liquor without a permit.  All of those offences were committed on the same day in the same place during a relatively short period of time.  She was given an aggregate sentence of imprisonment for one month.  I infer that, by imposing an aggregate sentence, the magistrate did apply the totality principle in considering what was the appropriate penalty for the degree of criminality involved in the whole of the offending.  Considering the seriousness of the total criminal conduct against the sentence imposed, I detect no error.

[16]     Ground 1 is that the sentence was manifestly excessive in the circumstances.  In arguing this ground, counsel for the appellant submitted that the appellant’s offending was not in the most serious class of cases of this nature and that, as the legislature has fixed a penalty of either a fine or imprisonment, a sentence of actual imprisonment should be reserved for only the most serious cases of this kind.  She submitted that as the appellant’s offending was not in the most serious category of cases (in fact she categorised it as towards the least serious end of the scale), a sentence of actual imprisonment was manifestly excessive.  I reject that submission.

[17]     First, there is no warrant in the legislation for inferring that a sentence of imprisonment is to be reserved for the most serious offences.  The sentencing magistrate is obliged to take into account the maximum penalty provided in the legislation.[8]  The maximum penalty provided for this offence is not “actual imprisonment” as contended by the appellant, it is imprisonment for 12 months.

[18]     Secondly, I do not accept the contention that this offending is at the less serious end of the scale for offences of this kind.  The offence was planned.  The appellant purchased bottles of liquor and took them to an area within 50 yards of a bottle shop in order to sell them.  It was done for commercial gain and the profits were exorbitant.  Between 10:19 am and 11:12 am the appellant sold a bottle of Bundaberg Rum for $100, a 2 litre cask of wine for $50 and a bottle of wine for $20.  When she was arrested she had two bottles of bourbon, one bottle of wine and $399.05 in cash.  From the place, time and price, it can be inferred (as the learned magistrate did) that the appellant was selling alcohol to people who were in such desperate addiction to alcohol that they were prepared to pay any amount to obtain it, and that she was preying on their misfortune to make a profit.  This is a serious example of offending of this kind. 

[19]     For these reasons, the appeal is dismissed.

 

 



[1]               R v Tait (1979) 24 ALR 473 at 476.

 

[2]               Van Toorenburg v Westphal [2011] NTSC 31 at [3].

 

[3]               House v The King (1936) 55 CLR 499 at 509 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

 

[4]               Van Toorenburg v Westphal at [23].

 

[5]               Jambajimba v Dredge (1985) 33 NTR 19, at 22 per Muirhead ACJ.

 

[6]               Bartusevics v Fisher (1973) 8 SASR 601.

[7]        Musgrave v Liyawanga & Ors and Hales v Stewart [2004] NTSC 53 at [66], also see discussion in the joint judgment of Martin (BR) CJ and Riley J in Daniels v The Queen [2007] NTCCA 9 at [4l] to [42], and sentencing remarks in R v Stuart Joseph (20922630) 17.03.2010 and R v Gregory David Mclellan (20922630) 29.01.2010.

 

 

[8]               Sentencing Act s 5(2)(a).