Mamarika v Ganley - [2013] NTSC 6

Mamarika v Ganley [2013] NTSC 6
PARTIES: MAMARIKA, Nalita
v

GANLEY, Carney

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   JA 71 of 2012 (21225080)
DELIVERED:   12 February 2013
HEARING DATE:   17 January 2013
JUDGMENT OF:   BARR J
APPEAL FROM:   Oliver SM
CATCHWORDS:

JUSTICES APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – COMMUNITY CUSTODY ORDERS
Whether magistrate failed to apply the principle of imprisonment as a last resort – whether magistrate gave adequate weight to the personal circumstances of the appellant – 27 year old female first offender – unlawful possession of 25g cannabis in a public place – plea of guilty and co-operation with authorities – no known drug or alcohol problem – whether a custodial sentence of two months to be served by way of community custody order was manifestly excessive.
Community custody orders – consideration of statutory conditions attaching – obligation to participate in programs, counselling and treatment for drug/alcohol abuse – principle that conditions of suspended sentences should not be unduly harsh or unreasonable or needlessly onerous applied to community custody orders to which extensive conditions attach by operation of statute.
Appeal allowed – failure to consider imprisonment as a last resort – inadequate weight given to the appellant’s personal circumstances – magistrate erred in imposing a custodial sentence and in ordering it to be served by way of a community custody order – sentence quashed – new sentence imposed to take account of events subsequent to original sentence.
Sentencing Act (NT), s 48A, s 48E
Misuse of Drugs Act (NT), s 9(2)(f)(i)
Justices Act, s 177
R v S W Bugmy [2004] NSWCCA 258, applied
Dinsdale v R (2000) 202 CLR 321; Dunn v Woodcock [2003] NTSC 24, followed
R v De Simoni (1981) 147 CLR 383, considered
REPRESENTATION:
Counsel:
Appellant:   J Hunyor
Respondent:   N Browne
Solicitors:
Appellant:   North Australian Aboriginal Justice Agency
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:   Bar1303
Number of pages:   14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mamarika v Ganley [2013] NTSC 6

No. JA 71 of 2012 (21225080)
BETWEEN:

NALITA MAMARIKA

Appellant

AND:

CARNEY GANLEY

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 12 February 2013)
Appeal against severity of sentence

On 13 September 2012 the appellant pleaded guilty in the Court of Summary Jurisdiction sitting at Alyangula to a charge of unlawfully possessing cannabis plant material in a public place. The quantity of cannabis was approximately 25 grams.
The agreed facts for the purposes of sentencing was as follows:
The defendant is a 27 year old female who resides in Umbakumba Community.
On the evening of 19 January 2012, the defendant was in Darwin with relatives [names read in court].
While in Darwin the defendant sourced and took possession of approximately 25 grams of cannabis. The defendant later divided the cannabis into 50 individual clipseal bags…

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 Mamarika v Ganley

Details

AGLC: Mamarika v Ganley [2013] NTSC 6
Case: [2013] NTSC 6
Decision Date: 12 February 2013

CaseChat Overview and Summary

The appeal by Mamarika against the sentence imposed by Ganley, a magistrate, concerns the imposition of a two-month custodial sentence to be served by way of a community custody order for the unlawful possession of 25 grams of cannabis in a public place. Mamarika, a 27-year-old first offender with no known drug or alcohol problems, pleaded guilty and cooperated with the authorities. The court needed to decide whether the magistrate failed to apply the principle of imprisonment as a last resort and whether the magistrate gave adequate weight to Mamarika’s personal circumstances.

The court examined the principle that imprisonment should be a last resort and considered the appellant’s personal circumstances, including her status as a first offender, lack of a drug or alcohol problem, and cooperation with authorities. The court also considered the statutory conditions attaching to community custody orders and the principle that the conditions of suspended sentences should not be unduly harsh or unreasonable or needlessly onerous. The court concluded that the magistrate erred in imposing a custodial sentence and in ordering it to be served by way of a community custody order, which was manifestly excessive given the circumstances.

The appeal was allowed on the grounds that the magistrate failed to consider imprisonment as a last resort and inadequately weighed the appellant’s personal circumstances. The sentence of two months’ imprisonment and the community custody order were quashed. The court ordered the release of Mamarika on her own recognisance with a bond of $1,000 to appear if called upon for 18 months and to be of good behaviour during that period. The substituted sentence took into account the events that occurred since the original sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion, the learned magistrate erred in imposing a custodial sentence, and in the manner she ordered the custodial sentence to be served. Conclusion and orders I allow the appeal on Grounds 1 and 2. I would also allow the appeal on Ground 4. It is not necessary for me to decide Ground 3. Pursuant to s 177(2)(c) Justices Act I affirm the finding of guilty and the conviction imposed by the learned magistrate, but for the reasons given I quash the sentence of two months’ imprisonment and the community custody order imposed by her Honour. My re-sentencing of the appellant is complicated by the fact that she commenced to serve her sentence of imprisonment under the community custody order on 13 September 2012 and, although she failed to report on three occasions in strict compliance with the community custody order, she nonetheless completed three weeks of community work pursuant to the order. She carried out 12 hours of community work for each of those three weeks, a total of 36 hours of community work in the period up to 5 October 2012. The community custody order was then suspended on 18 October 2012 pending the hearing of this appeal. In the circumstances, I propose to order the release of the appellant, and I make the following order by way of substituted sentence: “Pursuant to s 13 Sentencing Act, I order that the appellant be released on her giving security without sureties by her own recognisance in the sum of $1,000 that she will appear before the court if called on to do so during the period of 18 months commencing this day, and that she will be of good behaviour for the said period of 18 months.” The substituted sentence should not be taken to be a sentence which I consider should have been imposed by the learned magistrate. The substituted sentence is intended to take account of the events which have taken place since the learned magistrate dealt with the appellant on 13 September 2012. I will hear counsel on the final orders required to give effect to these Reasons. ------------------------

Ratio Decidendi

Legal Principle Established

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