Joran v Wilson - [2006] NTSC 46

Joran & Ors v Wilson & Anor [2006] NTSC 46
PARTIES:JORAN, JASON
VIGONA, TINA
CEBU, MARYANNE
PASCOE, DALE and
COOPER, ROWENA

v

WILSON, DAVID ANDREW and
MUSGRAVE, RAYMOND

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:Nos. JA 42, 44, 48, 49 & 50 of 2005
(20517629, 20513634, 20515176, 20514028, 20516051)

DELIVERED:  26 APRIL 2006
HEARING DATES:  6, 7, 21, 26 APRIL 2006
JUDGMENT OF:  ANGEL J
APPEAL FROM:  NT COURT OF SUMMARY JURISDICTION
CATCHWORDS:

Appeal – justices – appeal against severity of sentence - Justices Act (NT) – unlawful supply of cannabis - Misuse of Drugs Act (NT) – imprisonment not the starting point for sentencing for the unlawful supply of cannabis to or within Aboriginal communities – full range of sentencing dispositions under s 7 Sentencing Act (NT) available – imprisonment disposition of last resort – Sentencing Magistrate ought first to exclude all other non-custodial dispositions under s 7 Sentencing Act (NT) – appeal allowed.
Misuse of Drugs Act (NT), s 5(1), 5(2)(a)(iv), 9(1), 9(2)(e), 9(2)(f)(i)
Sentencing Act (NT), s 7
Followed:
Musgrave v Yarllagulla [2006] NTSC 17
Musgrave v Liyawanga [2004] NTSC 53
Dunn v Woodcock [2003] NTSC 24
Approved:
Scott v Perry [2003] NTSC 26
Wunungmurra [2006] NTCCA 3
Salmon v Chute (1994) 94 NTR 1
Hales v Stewart [2004] NTSC 53
R v Thomas Edward Wesley SCC 20103640, unreported, 20 September 2001
Applied:
Gumurdul v Reinke [2006] NTSC 27
R v Tait (1979) 46 FLR 386
Turner v Trenerry [1997] 1 NTSC 21
Williams v Marsh (1985) 38 SASR 313
Distinguished:
R v Hansen–Detaurbet SCC 20313650, unreported, 14 December 2004

REPRESENTATION:
Counsel:
Appellants:S Musk
Respondents:  S Ozolins
Solicitors:
Appellants:NAAJA
Respondents:  Office of DPP
Judgment category classification:    B
Judgment ID Number:  Ang200609
Number of pages:  30

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Joran & Ors v Wilson & Anor [2006] NTSC 46
Nos. JA 42, 44, 48, 49 & 50 of 2005
(20517629, 20513634, 20515176, 20514028, 20516051)

BETWEEN:

JASON JORAN
First Appellant

TINA VIGONA
Second Appellant

MARYANNE CEBU
Third Appellant

DALE PASCOE
Fourth Appellant

ROWENA COOPER
Fifth Appellant

AND:

DAVID ANDREW WILSON
First Respondent

RAYMOND MUSGRAVE
Second Respondent

CORAM: ANGEL J
EX TEMPORE REASONS FOR JUDGMENT
(Delivered 26 April 2006)
[1]These are five appeals pursuant to s 163 of the Justices Act (NT) against severity of sentence. The appellants are all traditional Aboriginals from either the Tiwi Islands or Maningrida in central Arnhem Land who committed cannabis offences contrary to the Misuse of Drugs Act (NT).
Jason Joran

[2]This appellant appeared before the Court of Summary Jurisdiction at Milikapiti on Melville Island on 18 August 2005 and pleaded guilty to a single charge of unlawful supply of cannabis contrary to s 5(1) Misuse of Drugs Act (NT). He was convicted and sentenced to three months imprisonment, which was ordered to be suspended after he had served one month with an operational period of 18 months on…

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 Joran v Wilson

Details

AGLC: Joran & Ors v Wilson & Anor [2006] NTSC 46
Case: [2006] NTSC 46
Decision Date: 26 APRIL 2006

CaseChat Overview and Summary

Joran v Wilson involved an appeal by the respondent against the severity of the sentence imposed by the sentencing magistrate. The appellant was found guilty of the unlawful supply of cannabis to or within Aboriginal communities under the Misuse of Drugs Act (NT). The case was heard and determined in the Northern Territory Court of Appeal. The primary issue before the court was whether the sentencing magistrate had considered the full range of sentencing dispositions available under the Sentencing Act (NT) and whether imprisonment was indeed the last resort, as mandated by previous case law.

The court examined the sentencing process to determine whether the magistrate had appropriately considered non-custodial sentencing options before imposing a custodial sentence. The court referenced prior decisions such as Musgrave v Yarllagulla and Musgrave v Liyawanga, which underscored the principle that imprisonment should not be the starting point for sentencing in cases involving the unlawful supply of cannabis within Aboriginal communities. The Sentencing Act (NT) mandates that all other non-custodial dispositions must be excluded before resorting to imprisonment. The court scrutinized whether the sentencing magistrate had correctly followed this legal framework. The court concluded that the magistrate had not adequately considered the non-custodial options available, leading to an improper imposition of the custodial sentence.

The Northern Territory Court of Appeal allowed the appeal and quashed the sentence imposed by the sentencing magistrate. The matter was remitted to the sentencing magistrate for reconsideration, with explicit direction to ensure all non-custodial sentencing options were considered before determining the appropriate sentence. The court emphasized the importance of adhering to the statutory framework and the principles set out in relevant case law.

Orders