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Hesseen v Burgoyne

Hesseen v Burgoyne

Case [2003] NTSC 47 9 May 2003

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Hesseen v Burgoyne [2003] NTSC 47
PARTIES:HESSEEN, Miriam

v
BURGOYNE, Robert Roland

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 38 of 2002
DELIVERED:  9 May 2003
HEARING DATES:  29 April 2003
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:
APPEAL

Justices appeal – unlawful possession goods – unlawful possession cannabis – manifestly excessive – erred in determining to record convictions – no prior convictions – person of good character – assessment of triviality and extenuating circumstances – conviction could have serious detrimental effect.
Summary Offences Act 1923 (NT), s 61; Misuse of Drugs Act 1990 (NT), s 9(1) and s 9(2)(f)(ii); Sentencing Act 1995 (NT), s 8
Gorey v Winzar, unreported, 4 April 2001, 1 NTJ (2001) at p 307, applied.
Briese (1997) 92 A Crim R 75 at 79, considered.
Mason v Pryce (1988) 34 A Crim R 1, applied.
House v The King (1936) 55 CLR 499, applied.
Dinsdale v The Queen (2000) 202 CLR 321, applied.
REPRESENTATION:
Counsel:
Applicant:J Kelly
Respondent:  C Roberts
Solicitors:
Applicant:NTLAC
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0318
Number of pages:  9

Mar0318
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hesseen v Burgoyne [2003] NTSC 47
No. JA 38 of 2002

BETWEEN:
MIRIAM HESSEEN

Applicant
AND:
ROBERT ROLAND BURGOYNE

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 9 May 2003)

Appeal against sentence. The appellant was convicted upon her pleas of guilty before the Court of Summary Jurisdiction at Alice Springs on 8 August 2002 for that:
1.On 11 January 2002 at Alice Springs she did have in her custody personal property namely $2,911.20 Australian currency, $310 US, and $5,000 in telephone cards, which at the time before making the charge was reasonably suspected of having been stolen or otherwise unlawfully obtained (s 61 Summary Offences Act 1923 (NT)), and
2.On the same date and place she unlawfully possessed cannabis plant material, a dangerous drug specified in Schedule 2 to the Misuse of Drugs Act 1990 (NT), contrary to s 9(1) and s 9(2)(f)(ii) of the Act.
On the first count it was ordered that the appellant "enter into a good behaviour bond for two years in the amount of $500". In respect of the drugs offence, she was fined $300. The grounds of appeal are that the sentences were manifestly excessive and that the learned Magistrate erred in determining to record the convictions.
The facts which were admitted and upon which her Worship proceeded may be summarised as follows:
Police executed a search warrant at the premises at which the appellant resided and the goods referred to in the first count were found and the cannabis detected. The goods were identified as having been stolen and there were matters put before her Worship to indicate that the appellant's boyfriend had stolen them. The appellant was arrested and taken to the Alice Springs Police Station, but when interviewed was said to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hesseen v Burgoyne

Details

AGLC: Hesseen v Burgoyne [2003] NTSC 47
Case: [2003] NTSC 47
Decision Date: 9 May 2003

CaseChat Overview and Summary

In the case of Hesseen v Burgoyne, the appellant challenged his convictions for unlawful possession of goods and unlawful possession of cannabis, arguing that the sentence was manifestly excessive and that the magistrate erred in determining to record the convictions. The matter was heard in the Court of Appeal. The appellant, who had no prior convictions and was described as a person of good character, contended that the magistrate had not adequately assessed the triviality of the offences and the extenuating circumstances, and that a conviction could have a serious detrimental effect on his life.

The court was tasked with examining whether the sentence imposed was manifestly excessive and whether the magistrate had erred in deciding to record the convictions. The court needed to consider the principles of sentencing, the nature of the offences, the appellant's character and background, and the potential impact of a conviction. The court also needed to determine whether the magistrate had properly assessed the circumstances of the offences and the appellant's personal situation.

The court found that the sentence was indeed manifestly excessive and that the magistrate had erred in deciding to record the convictions. The court emphasised the importance of considering the triviality of the offences and the extenuating circumstances, particularly for a person with no prior convictions and a good character. The court noted that the potential detrimental effects of a conviction on the appellant's life were significant and warranted careful consideration. The appeal was allowed, the convictions were quashed, and the matter was remitted to the Magistrates' Court for resentencing.

The court ordered that the convictions for unlawful possession of goods and unlawful possession of cannabis be quashed and that the matter be remitted to the Magistrates' Court for resentencing, taking into account the principles of sentencing, the triviality of the offences, the extenuating circumstances, and the potential impact of a conviction on the appellant.

Orders