Burnie v Firth - [2023] NTSC 14

CITATION: Burnie v Firth [2023] NTSC 14
PARTIES: BURNIE, Adam
v
FIRTH, Justin Antony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:   LCA No. 23 of 2022 (22219747)
DELIVERED:  16 February 2023
HEARING DATE:   16 February 2023
JUDGMENT OF:  Riley AJ
REPRESENTATION:
Counsel:
Appellant:   S McMaster
Respondent:  I Rowbottam
Solicitors:
Appellant:   Maleys Legal
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:                           Ril2301
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Burnie v Firth [2023] NTSC 14
LCA No. 23 of 2022 (22219747)
BETWEEN:
ADAM BURNIE
Appellant

AND:

JUSTIN ANTONY FIRTH
Respondent

CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered ex tempore on 16 February 2023)

This is an appeal against a sentence imposed in the Local Court. The sole ground of appeal is that the sentence was manifestly excessive.
On 25 November 2022, the appellant pleaded guilty to a range of offences. The most serious of which (Count 2) was that he intentionally possessed a trafficable quantity of a dangerous drug, methamphetamine, in a public place contrary to subsection 7C(1) of the Misuse of Drugs Act. The maximum penalty for the offence is imprisonment for 14 years. In relation to this offence, he was sentenced to imprisonment for eight months backdated by 11 days to allow for time spent in custody.
At the same time he pleaded guilty to the offence of possessing a thing (an ice pipe) used to administer a dangerous drug contrary to s 12(1) of the Misuse of Drugs Act. The maximum penalty for this offence is imprisonment for 6 months. In this regard, he was sentenced to imprisonment for one month to be served concurrently with the sentence imposed in relation to Count 2.
In addition, the appellant was dealt with for the offences of driving with methamphetamine in his blood, driving unlicensed and exceeding the speed limit. The appellant does not challenge the sentences imposed in relation to those counts.
The circumstances of the offending were not in dispute. On 30 June 2022, police conducted a roadside drug test after the vehicle being driven by the appellant, a 42 year old man, had been detected speeding on Winnellie Road, Winnellie. The drug test returned a positive indication for the presence of illicit substances in his system. A search of his vehicle resulted in police seizing $32,700 in cash, two small round plastic containers one of which contained a quantity of loose methamphetamine and the other multiple clip-seal deal bags containing methamphetamine. The total weight of the methamphetamine was 20.9g. In addition, a pouch containing drug implements including straws, a glass ice pipe and unused bags was seized along with the appellant’s Western Australian driver’s licence which had expired. A search warrant executed at his residence located an ice pipe and an ice bong. The Court was informed that sale of the 20.9g of methamphetamine would bring over $20,000 if sold by the gram. This figure would have been higher had the methamphetamine been cut with a cutting agent prior to sale.
Upon the production of relevant evidence, it was accepted by the prosecution and by the learned sentencing Judge that the $32,700 was the sum left over from monies lawfully obtained by the appellant.
Section 37 (6) of the Misuse of Drugs Act provides that a sentencing court is to presume that a person possessing a trafficable quantity of methamphetamine intended to supply the dangerous drug unless the contrary is proved. The appellant did not seek to rebut the presumption.
The appellant had a relevant criminal history for like offending in Western Australia, where he had been sentenced to significant periods of imprisonment. On 24 June 2005, he had been sentenced to imprisonment for 2 ½ years for possessing amphetamine and then, on 28 September 2012, he received a sentence of imprisonment for 18 months for possession of methamphetamine with intent to sell or supply. Further, I note that he was fined in Western Australia for driving with a prescribed illicit drug in his system in August 2019.
In the Court below it was submitted on behalf of the appellant that a wholly suspended sentence was the appropriate disposition. This was opposed by the prosecution.
In short sentencing remarks, the Local Court Judge accepted that the appellant had entered an early plea, that his most recent serious offending was some 10 years earlier, that the appellant had made “some real efforts to rehabilitate himself” (which, I note, included seven counselling sessions with Amity Community Services), that he had references from people who support him (albeit only in recent times and without referring to his criminal history in Western Australia) and that he had employment. However, in all the circumstances, including his criminal history and his history of drug use, his Honour concluded that the appellant’s prospects for rehabilitation “must be seen as limited”. Notwithstanding that conclusion his Honour expressly acknowledged the requirement to give consideration to the rehabilitation of the appellant.
His Honour observed that offending of this kind, being the possession and the presumptive supply of methamphetamine and driving under the influence of methamphetamine, was prevalent and that it has serious impact on the community. His Honour referred to the need to consider personal and general deterrence, the need to express the disapproval of the community of this type of conduct and to provide protection to the community. His Honour noted that the offending was “quite simply egregious and indicates a disregard on the part of the offender of any avoidance of this drug world and drug taking behaviours”. His Honour rejected the submission that a suspended sentence was appropriate and proceeded to impose the penalties to which I have referred.
In submissions to this Court, it was acknowledged on behalf of the appellant that he had struggled with drug use over many years and also that drug dependency had been an issue for him for many years. It was submitted that the present offending should be treated as a “relapse”. This submission would have carried more weight had it not been for the finding in his possession of items consistent with supply to others and the amount of the drug recovered taken in conjunction with the statutory presumption of supply in the Misuse of Drugs Act.
The submissions on behalf of the appellant made reference to the matters placed before the sentencing Judge but did not complain that those matters were not taken into account in determining sentence. In those submissions emphasis was placed on the significant gap in his offending, his employment history including that he then had full-time employment, and his efforts at rehabilitation, to suggest that he had good prospects for rehabilitation.
This submission was contrary to the conclusion of the sentencing Judge that those prospects were “limited”. In my opinion the characterisation of those prospects by the sentencing Judge was both open and unsurprising. The criminal history of the appellant including significant periods of imprisonment for serious drug offending along with the less serious but drug-related offending in August 2019, his history of drug abuse over many years, the acknowledgement by his counsel that the appellant is a “functioning drug user” who has “struggled with drug dependency for many years” coupled with the circumstances of the present offending lend support to the conclusion.
This was clearly serious offending. The amount of the drug in his possession was a trafficable quantity with a significant value if sold on the street. As was submitted to the sentencing Judge on his behalf, the appellant had “spent a vast sum of money buying this methamphetamine”. He did not purchase a small amount of the drug for his own use. This was not some minor relapse. The sentencing Judge made it clear to counsel that on the face of the material the statutory presumption of supply went beyond the mere transport of the drug and invited further submissions or evidence in that regard. No further evidence was called on behalf of the appellant.
I note in passing that his Honour gave a significant discount for the plea of guilty amounting to some 33%. It is not clear why such a discount should have been provided in the circumstances of this matter.
I also note that his Honour did not impose a suspended sentence or a partially suspended sentence. Although a partially suspended sentence was a consideration and, although another judicial officer may have taken that approach, I see no misapplication of principle on the part of his Honour. The sentence imposed was reasonably available.
The relevant principles applicable to this ground are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. The appellate court does not interfere with the sentence imposed unless it is shown that the sentencing Judge was in error. The error may appear in what the sentencing Judge said in the proceedings or the sentence itself may be so excessive as to manifest error. It must be shown that the sentence was clearly and not just arguably excessive. [1]
The appellant has not shown any relevant error on the part of the sentencing Judge and, importantly, I do not regard the sentence as having been excessive in the circumstances of the offences or of the offender.
The appeal is dismissed.

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[1]Whitehurst v The Queen [2011] NTCCA 11 at [12]; Noakes v The Queen [2015] NTCCA 7 at [23]; Emitja v The Queen [2016] NTCCA 4; 39 NTLR 159 at [39]; JF v The Queen [2017] NTCCA 1 at [49].