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Editors --- "Joran v Wilson [2006] NTSC 46 - Case Summary" [2006] AUIndigLawRpr 50; (2006) 10(3) Australian Indigenous Law Reporter 53

JORAN & ORS v WILSON & ANOR

Supreme Court of the Northern Territory (Angel J) 26 April 2006 [2006] NTSC 46

Appeal against severity of sentence — contravention of Misuse of Drugs Act 1990 (NT) — unlawful supply of cannabis — general sentencing principles apply to Indigenous offenders — s 7 Sentencing Act 1995 (NT) — imprisonment disposition of last resort

Court and Tribunal Decisions

Facts:

The five Indigenous appellants, from communities on Tiwi Islands and Central Arnhem Land, appealed against the severity of their sentences. All appellants had been convicted of cannabis offences under the Misuse of Drugs Act 1990 (NT) (‘the Act’) and had been sentenced to terms of imprisonment. All were first offenders under the Act.

The first appellant, Jason Joran, pleaded guilty at trial to the charge of unlawful supply of cannabis and was convicted and sentenced to three months imprisonment, suspended after one month with an operational period of 18 months on conditions. Joran appealed on the following three grounds: that his sentence was manifestly excessive; that the Chief Magistrate failed to consider alternative dispositions in awarding his sentence; and that the Chief Magistrate erred in imposing an actual term of imprisonment.

The second appellant, Dale Pascoe, pleaded guilty at trial to the charge of unlawful possession of a trafficable quantity of cannabis and was convicted and sentenced to two months imprisonment, suspended after 14 days with an operational period of two years with conditions including drug testing. He appealed on three grounds: that the Chief Magistrate had erred in his characterisation of the possession of dangerous drugs as akin to an offence of supplying dangerous drugs; that insufficient weight was given to the good character of the appellant; and that the Chief Magistrate erred in treating the appellant as a ‘special vehicle’ for purpose of general and specific deterrence.

The third appellant, Tina Vigona, was found in possession of a small quantity of cannabis, which she claimed was for personal use. At trial the appellant pleaded guilty to the charges of unlawful possession of cannabis in a public place and unlawful possession of implement for drug use, and was convicted and released on a 12-month good behaviour bond subject to conditions including drug counselling and drug testing. Vigona appealed her sentence on the basis that the sentence was manifestly excessive and the Chief Magistrate imposed excessively onerous conditions on her bond. By leave the appellant added the third ground of appeal regarding the Chief Magistrate’s incorrect recording of her conviction.

The fourth and fifth appellants, Maryanne Cebu and Rowena Cooper, both pleaded guilty at trial to three charges of unlawful supply of cannabis. In addition, Cooper pleaded guilty to one charge of unlawful possession of cannabis in a public place. Cebu was convicted and sentenced to two months imprisonment, suspended after 14 days with an operational period of two years with conditions including drug testing. She appealed on the grounds that the Chief Magistrate gave insufficient weight to her good character and too much weight to the need for specific deterrence in her case.

Cooper was convicted and sentenced to three months imprisonment, suspended after three hours with similar operational period and conditions as Cebu. Cooper appealed on the grounds that: the Chief Magistrate erred in placing insufficient weight on her youth; and also erred in placing insufficient weight on her good character and personal circumstances. A further ground of appeal was added by leave on the basis that the Chief Magistrate failed to record the weight of the appellant’s cooperation with authorities.

Held, allowing the appeals:

1 The Court confirmed the general sentencing principle that the exercise of sentencing discretion should not be disturbed on appeal unless error in that exercise is shown and there is presumptively no error: [29]–[30], The Queen v Tait (1979) 46 FLR 386 referred to.

2 The Chief Magistrate erred in treating a term of actual imprisonment as a starting point in relation to sentencing for the unlawful supply of cannabis in Aboriginal communities. None of the appellants fell within the sentencing provisions of subsections 37(2) and (3) of the Act which demand a minimum 28 days’ incarceration and therefore the full range of sentencing dispositions as prescribed by section 7 Sentencing Act 1995 (NT) were available to the Chief Magistrate: [33].

3 There is no sentencing principle that first offenders who supply cannabis to or within Aboriginal communities must expect immediate imprisonment regardless of the circumstances: [34], [51], [52].

4 A sentence of imprisonment is only to be imposed when all other sentencing options have been eliminated, including non-custodial dispositions under section 7 Sentencing Act 1995 (NT). This is of particular importance with regard to first time offenders: [34], [51], Turner v Trennery (1997) 1 NTSC 21 and Gumurdal v Reinke [2006] NTSC 27 followed.

5 The unlawful supply of cannabis to and within Aboriginal communities is to be strongly condemned and deterred, but this does not necessitate the incarceration of offenders, let alone first offenders. Each case is to be regarded individually on its own circumstances: [55], Musgrave v Liyawanga (2004) NTSC 53 referred to.

6 The sentence imposed on the appellant Joran was manifestly excessive. Insufficient account was taken of his drug addiction, his willingness to undertake counselling, his strong family and community support, and his significant contributions to the community and positive prospects for further education: [58]–[59]. Appeal allowed and appellant to be released upon undertaking to complete drug rehabilitation courses and 18 months supervision: [61].

7 The sentence imposed on the appellant Pascoe failed to give sufficient weight to his good character and contributions to the community. Appeal allowed; appellant to be re-sentenced to one month suspended imprisonment with operational period of 18 months: [64].

8 The conditions imposed on the sentence of the appellant Vigona far exceeded what was reasonable in the circumstances: [74], Dunn v Woodcock (2003) NTSC 24 referred to. The appellant had insight into her drug use and its effect on herself and the community, and she was willing to seek assistance for herself: [70]. Appeal allowed; conviction confirmed and appellant released on good behaviour bond for a period of 12 months: [75].

9 The appellants Cebu and Cooper had fully cooperated with the police and made full and frank admissions at an early opportunity: [67]. Appeals allowed; Cebu’s sentence of two months imprisonment confirmed but suspended for operational period of two years conditional on good behaviour; Cooper re-sentenced to two months imprisonment suspended with operational period of two years conditional on good behaviour: [68]–[69].