Marie Ahfat v Cassidy - [2022] NTSC 27

CITATION:Marie Ahfat v Cassidy [2022] NTSC 27
PARTIES:AHFAT, Marie
v

CASSIDY, Craig

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LCA 38 of 2021 (22123820)
DELIVERED:  5 April 2022
HEARING DATES:  5 April 2022
JUDGMENT OF:  RILEY AJ

CATCHWORDS:

CRIME – Appeal and review – Appeal from Local Court to Supreme Court - Appeal against Sentence – Manifest excess – Supplying alcohol to persons with BDO – Alcohol Harm Reduction Act 2017 (NT) s 42 – Liquor Act 2019 (NT) s 45
REPRESENTATION:
Counsel:
Appellant:M Wall
Respondent:  P Williams
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril2201
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ahfat v Cassidy [2022] NTSC 27

No. LCA 38 of 2021 (22123820)
BETWEEN:

MARIE AHFAT

Appellant

AND:

CRAIG CASSIDY

Respondent

CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered 5 April 2022)

This is an appeal against sentence on the sole ground that the sentence was manifestly excessive.
On 7 October 2021, in the Local Court at Alice Springs, the appellant entered a plea of guilty to two charges: having supplied alcohol to a prohibited person contrary to s 42 of the Alcohol Harm Reduction Act 2017 (NT) for which the penalty is a fine; and the unauthorised sale of liquor contrary to s 45(1) of the Liquor Act 2019 (NT) for which the maximum penalty is imprisonment for three years. She was found guilty and convicted on each charge and sentenced to imprisonment for three months fully suspended for a period of 12 months, and fined. There were no conditions imposed in relation to the suspended sentence beyond a requirement for her not to commit any further offences punishable by imprisonment.
The circumstances of the offending were not in dispute. The Local Court was informed that on 8 June 2021 the brother of the appellant, Gary Luke Ahfat, was issued with a Banned Drinker Order (BDO) expiring on 7 December 2021. Gary had been asked by a relative, who was also the subject of a BDO, to purchase alcohol for him being, a 24-pack of Toohey’s Extra Dry beer and a 1 litre bottle of Jim Beam bourbon. The relative provided Gary with $120 to cover the cost of the alcohol as well as another $50 as an incentive or benefit for carrying out the request. Gary then approached his sister, the appellant, requesting that she carry out the purchase because he was unable to do so due to him being under a BDO. Gary provided the appellant with the $120 and the additional $50.
The appellant and others then drove to a takeaway liquor store and she entered the premises with her sister. On entry she had a conversation with a Police Axillary Liquor Inspector and informed him that she intended to purchase the alcohol to be consumed by herself and her sister at her home address. She proceeded to purchase the alcohol and returned to the vehicle. She then returned to her home address leaving the alcohol in the possession of her brother. Gary delivered the alcohol to the relative and was paid a further $50. Shortly thereafter Gary was apprehended by police.
The appellant and Gary were subsequently interviewed by police and during that interview the appellant made admissions to receiving a benefit of $50 for purchasing the alcohol for Gary. She acknowledged that she was aware that he was under the provisions of a BDO and unable to purchase the alcohol for himself. She was unaware of the arrangement between Gary and the relative.
The Local Court Judge was informed that the appellant was aged 33 years, had been to school until year 8, had two children aged 18 and 16 years and was presently on Centrelink. She had previously had employment and was a contributing member of the community. She had a criminal history which was accepted not to be relevant for present purposes. It was submitted on her behalf that a conviction accompanied by a fine or good behaviour bond was an appropriate response.
In determining sentence his Honour took into account the personal circumstances of the appellant, her difficulties in “saying no” to family members, the fact that it was a single incident rather than a course of conduct and her plea of guilty.
The Judge observed that general deterrence was the most significant consideration in determining an appropriate sentence. His Honour observed:
The maximum penalty in respect of count 4, as you have heard, is up to 3 years imprisonment. And Parliament have fixed that because it is a serious offence. Unfortunately, as you know as well as I do, alcohol is causing a very detrimental impact upon people in Alice Springs and elsewhere, too. And it’s important that all of us don’t become involved in helping other people out to get grog. …. General deterrence though, is a very significant sentencing factor and the court has to make a bold statement to you and the broader community that you’re not to get involved in providing alcohol to other people and getting any reward from it because it’s just detrimental to others and the community, generally.
His Honour then convicted the appellant and sentenced her to 3 months imprisonment suspended immediately in relation to the Liquor Act offence. In relation to the other offence his Honour convicted the appellant and imposed a fine of $1000.
The submission on behalf of the appellant is that the sentence was manifestly excessive. The principles applicable to this ground of appeal are well-settled. It is fundamental that the exercise of the sentencing discretion is not to be disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court will only interfere if it is shown that the sentence was committed in error or in reliance upon a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. It is incumbent upon the appellant to show that the sentence was not just excessive, but manifestly so. The appellant must show that the sentence was clearly and obviously, and not just arguably, excessive.[1]
In the Northern Territory the legislative regime surrounding the sale and supply of alcohol includes a range of initiatives designed to deal with the serious alcohol problems experienced here. The controls and limitations placed on the sale of alcohol in the Liquor Act in part serve that purpose. The primary purpose of that Act is expressed to be to “minimise the harm associated with the consumption of liquor in a way that recognises the public interest in the sale, supply, service, promotion and consumption of liquor”.[2] Further, the BDO provisions and the Banned Drinker Register,[3] are explicit alcohol supply reduction measures aimed at improving community health and safety by reducing alcohol-related harms. The measures are directed towards placing people who consume alcohol at harmful levels onto a register which prohibits the consumption, possession or purchase of alcohol. The objects of the Alcohol Harm Reduction Act include “protecting people who are misusing alcohol from severe or serious harm because of the misuse, and protecting people, particularly children, from harm or nuisance resulting from the misuse of alcohol by others.”[4]
As the learned Local Court Judge recognised, the effectiveness of the regime is undermined if the person on the BDO can obtain access to alcohol through other means, including purchase, in what has been described as secondary supply. His Honour was informed that this type of offending was both prevalent and problematic offending in Alice Springs.
The problem of secondary supply is well recognised and has been discussed by researchers.[5] Conduct such as that of the appellant serves to defeat the purpose of the regime. It is, in that sense, serious offending.
Counsel for the appellant submitted to the Local Court that the offending was unsophisticated and the reward for the appellant was a relatively minor amount. This was not a situation of ongoing supply or a major commercial operation but, rather, one instance of supply. However, the offending took place in circumstances where the appellant was fully aware of the existence of the BDO and that she was purchasing and, effectively, on-selling alcohol with a view to subverting the order. She believed the alcohol was for her brother and it seems she had no qualms about supplying him with alcohol for reward even though he had a serious problem with alcohol which the BDO was intended to address. In committing the offence she lied to the Police Auxiliary Liquor Inspector claiming the alcohol was for her own consumption and that of her sister. Although it may have been unsophisticated it was, nevertheless, a deliberate and planned event for which she was rewarded.
Counsel for the appellant provided a table comprising known sentences imposed by the Local Court under s 45 of the Liquor Act 2019 and the corresponding repealed provisions of s 115 of the Liquor Act 1978. The 1978 Act was repealed and replaced in 2019 at which time the maximum penalty for this offence was raised from imprisonment for 12 months to imprisonment for three years and/or a fine. This increase is a clear indication on the part of the Legislature as to the higher level of seriousness with which such offending was to be regarded.
Not surprisingly the table reveals a range of sentences for such offending. The facts and circumstances of the offending and of the offender vary considerably from case to case. However, it is noteworthy that in a number of cases in which the unlawful sale of alcohol involved a singular transaction of one or two items, fully suspended sentences of imprisonment of one month or two months were imposed. Those matters were dealt with under the pre-existing legislative provision with a maximum penalty of 12 months rather than the present three years.
In Pham,[6] the High Court observed that:
Appellate intervention on the ground of manifest excess is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentences differ from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
In my opinion, in this matter, the table does not support a suggestion that the sentence was relevantly disparate from others.
It was submitted on behalf of the appellant that the table revealed a discernible difference between sentences for such offending imposed in Central Australia from those in Darwin and Katherine. With respect, I do not accept that the table mentioning just 16 matters, of which a number are quite different from the matter under consideration and from each other, spread over those differing regional areas, can support the submission.
If I am wrong in that regard and there was a disparity based on prevalence, as was noted by Grant CJ in Anderson v Dunne,[7] the prevalence of an offence is a valid consideration when imposing sentence and offences of greater prevalence may require higher penalties. His Honour observed that this principal has application to the prevalence of a particular offence generally, to a particular offence committed by a particular group, or to a particular offence in a particular locality.
Further, I do not accept the submission that the sentence imposed by the Sentencing Judge was an “artificial term of imprisonment, inflated with the object of giving an appearance of severe punishment although it is expected that this will not actually be carried into effect” as discussed by the High Court in Dinsdale.[8] In my opinion nothing said by the very experienced Judge suggested that to be the case. Indeed, shortly before his Honour imposed sentence, counsel reminded him that sentencing to imprisonment is a last resort and that a suspended sentence “is a term of imprisonment just served in a particular way”
Whilst the sentence could be described as a stern sentence no error has been demonstrated and the sentence is not so excessive as to fall outside the permissible range of sentences having regard to the appellant and to the offence. [9]
The appeal is dismissed.
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[1] Edmond and Moreen v The Queen [2017] NTCCA 9 at [4].

[2] Liquor Act 2019 (NT) s 3(1).

[3]Found in the Alcohol Harms Reduction Act 2017 NT.

[4] Alcohol Harm Reduction Act 2017 (NT) s 3(c) and (d).

[5] Example, Understanding the secondary supply of alcohol as a wicked policy problem: The unique case of the Banned Drinker Register in the Northern Territory; Adamson, Smith, Clifford and Wallace (2021). Australian Journal of Public Administration.

[6] R v Pham (2015) 325 ALR 400 at [28].

[7] Anderson v Dunne [2017] NTSC 16 at [34].

[8] Dinsdale v The Queen (1999) 202 CLR 321 at [78].

[9] Kentwell v R (2014) 252 CLR 601 at [35].