McMillan v Ryan - [2001] NTSC 72

McMillan v Ryan [2001] NTSC 72
PARTIES:MCMILLAN, James Stuart
v

RYAN, Craig Victor

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 39 of 2001
DELIVERED:  17 August 2001
HEARING DATES:  20 July 2001
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

APPEAL
Justices – appeal against recording conviction – unlawful cultivation of cannabis – unlawful possession of cannabis – unlawful possession of a bong for use in the administration of a dangerous drug – whether Magistrate erred in the exercise of his discretion to record a conviction.
Justices Act 1928 (NT)
Sentencing Act 1995 (NT), s 7 & s 8
Cobiac v Liddy (1969) 119 CLR 257, mentioned
Griffiths v The Queen (1977) 137 CLR 293, mentioned

REPRESENTATION:
Counsel:
Appellant:J Stirk
Respondent:  G McMaster
Solicitors:
Appellant:Povey Stirk
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0126
Number of pages:  9

Mar0126
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McMillan v Ryan [2001] NTSC 72
No. JA 39 of 2001

BETWEEN:
JAMES STUART MACMILLAN

Appellant
AND:
CRAIG VICTOR RYAN

Respondent

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 17 August 2001)

Appeal against sentence. On 14 March 2001 the learned Magistrate constituting the Court of Summary Jurisdiction sitting at Alice Springs rejected the appellant’s plea that he not proceed to record convictions in respect of the following offences to which he had pleaded guilty:

1.Unlawful cultivation of eight cannabis plants, a traffickable quantity; penalty $10,000 fine or two years imprisonment.
2.Unlawful possession of a bong for use in the administration of a dangerous drug; penalty $2,000 or imprisonment for two years.
3.Unlawful possession of cannabis; penalty $5,000 or imprisonment for two years.

The Court imposed an aggregate fine of $1,300.
The admitted facts relating to the offending were that on 3 February 2001 police executed a drug search warrant at the appellant’s residence at Alice Springs. On entry into the residence, police saw the appellant in the process of lighting a bong to smoke cannabis. As a result of a search police located a number of plastic bags containing cannabis seed and plant material, a cannabis seedling growing in a pot on the back porch and a large cannabis plant growing in the rear yard which was being watered by way of a hydroponic setup. Six small seedlings were found growing under a fluorescent light in a bedroom. Also found were three books relating to the growing of cannabis and six empty seedling pots. The total weight of dried cannabis was just under fifty grams. As is his right, the appellant declined to answer police questions. He had no record of prior convictions. It was accepted by the prosecutor that the cannabis was for the appellant’s personal consumption.
The appellant was 23 years of age. It was immediately put by counsel before his Worship that they were serious charges which may have the effect of terminating his employment. He was educated to year 12 and after finishing school in Darwin went to Alice Springs where he worked for about 12 months and then returned to Darwin where he undertook volunteer work at a nursing home for older citizens. He then went back to Alice Springs were he was employed at a nursery for about three and a half years and undertook a traineeship in horticulture. Late in the year 2000 he obtained casual employment providing support services, such as housing, both in the community and other centres. The employer received funds from the Commonwealth under guidelines that required that the employment of any person convicted in relation to a drug matter be terminated. The appellant asserted he was unaware of that.
References were placed before his Worship going to the appellant’s good character, the discharge of his employment as a carer and the positive value of his work amongst people with disabilities. His father travelled to Alice Springs from Darwin to give evidence regarding the importance of the employment to the appellant. He had not taken the opportunity to discuss the particular offending with his son.
It was put by counsel for the appellant that an appropriate sentence would be the imposition of a bond without recording a conviction pursuant to s 11 of the Sentencing Act 1995 (NT).
It is provided in s 67 of the Justices Act 1928 (NT) that if the defendant admits the truth of a complaint, as here, and no sufficient cause is shown to the contrary, the Court of Summary Jurisdiction shall find him guilty. A minute or memorandum of the finding of guilt is required to be made (s 70 and see also s 187A).
The Sentencing Act then comes into operation and a court is empowered to make one or more of the sentencing orders detailed in s 7. There is a discretion in some instances as to whether to proceed with or without recording a conviction, including where a fine is imposed. Whether a finding of guilt amounts to a conviction is debatable, but it is not necessary to resolve the question in this case. Reference might be made to the Justices Act, s 163, s 174 and s 177(2)(c), forms 23, 24 and 25 and the prescribed form on Notice of Appeal. See the discussion on this question in Cobiac v Liddy (1969) 119 CLR 257 and Griffiths v The Queen (1977) 137 CLR 293.
The circumstances to which a court shall have regard in deciding whether or not to record a conviction are set out in s 8 of the Act. The court is to have regard to the circumstances of the case including
(a)the character, antecedents, age, health or mental condition of the offender;
(b)the extent, if any, to which the offence is of a trivial nature; or
(c)the extent, if any, to which the offence was committed under extenuating circumstances.
It is provided in s 8(2) that except as otherwise provided by the Sentencing Act or any other Act, a finding of guilt without the recording of a conviction shall not be taken to be a conviction for any purpose. The Court is not, however, thereby precluded from imposing certain types of punishment as envisaged in s 7.
The appellant relied upon the personal circumstances referred to s 8(1)(a). It was conceded that none of the offences were trivial, they were described by counsel for the appellant as being serious, and no reliance was placed upon extenuating circumstances relating to the commission of the offences.
The thrust of the plea before his Worship was that in considering the application that he not record a conviction he take into account the circumstances personal to the appellant and the prospective loss of employment should convictions be recorded.
The matters referred to in s 8(1)(a) are not capable of being related to future events. They are to be assessed by factual material before the sentencing court. In this case there was a 23 year old man of good character. Nothing was put concerning his health or mental condition. His previous history showed he had had a good education to secondary standard and had advanced himself by employment and further study. It seems to me that the court could regard all of those matters favourably to the appellant. It was obliged, however, to have regard to all of the circumstances of the case not just those particular matters. In that regard it was entitled to take into account the nature of the offending which involved, at the most serious end of the scale, the act of cultivating a dangerous drug in deliberate contravention of the criminal law carrying a significant maximum penalty. The amount of cannabis cultivated and in the possession of the appellant was not insignificant. That it was accepted as being for his own use only goes somewhat towards mitigation of the seriousness of the offence.
It was not challenged before his Worship that recording a conviction would lead to the appellant losing his job. Loss of present employment or deprivation of reasonable opportunities for future employment is a matter commonly urged before sentencers as serious civil consequences which will or may result flowing from a conviction. That may lead to a decrease of the severity of the sentence taking into account the additional detriment, but not always. The relevance and weight which such a factor bears on the sentencing process is to be assessed in the circumstances of each offence and of each offender and is within the discretion of the sentencer.
I note that the appellant was ordered to pay a fine and that that penalty could have been imposed with or without the recording of a conviction, s 7(e), the imposition of the fine is not challenged upon appeal.
In my opinion it can not be realistically suggested that his Worship did not have in mind the appellant’s primary submission when he embarked upon his sentencing remarks. They followed immediately after counsel for the appellant had briefly reiterated his plea that a conviction not be recorded. His Worship immediately noted the appellant’s age, current employment and noted that he would lose his job if he were convicted. The learned Magistrate then reviewed the circumstances of the offence and noted that no information had been placed before him as to what it was that led to the appellant’s offending nor as to his future plans in relation to cannabis. He expressed surprise that the appellant’s father had not discussed the matter of his offending with the appellant and speculated as to why that may not have happened. Those remarks by his Worship and others are to be taken as being directed to considerations of remorse and prospects of rehabilitation, legitimate sentencing factors.
His Worship considered there were two reasons why it would not be appropriate to not convict the defendant. The first was the principle of general deterrence requiring that a warning be given to the community that “in appropriate cases people will be convicted and will endure the stigma of conviction for drug offences”. He then turned his mind to the question of the appellant’s character, referring to the evidence in that regard and noted that the description given by the referees fitted many people and there was nothing out of the ordinary in the appellant’s character so as to differentiate him from others who come before the courts on cannabis charges. He again indicated that general deterrence had weighed upon his mind.
His Worship then expressed himself not satisfied that the defendant was a person of positive good character, diminishing the value of the evidence in that regard by further reference to the discussion between the appellant’s father and the appellant regarding his involvement with drugs and the lack of explanation as to why the appellant committed the offences and what resolution he had made consequent upon his detection. There was nothing in what had been placed before his Worship that would indicate that the appellant intended to mend his ways. What clearly troubled him was that there was nothing to suggest that the appellant had addressed the problem which led him to take up smoking cannabis so that the need to have recourse to drugs would not occur in the future. “… he did nothing to reassure me that he would not offend again, with the exception of a statement by his legal representative that a bond would encourage obedience to the law”.
His Worship expressly took into account the loss of employment, indicating that it was just part of the cost of this criminal conduct, but also saying that it was factor to be taken into account as a particular circumstance mitigating against the operation of s 37(2) of the Misuse of Drugs Act 1990 (NT) in relation to the unlawful cultivation charge. Absent that particular circumstance, the appellant might have been subjected to a sentence of imprisonment of not less than 28 days.
I am not satisfied that his Worship erred in the exercise of his discretion. Although criticism was made of the way in which his Worship expressed his views, it is sufficiently clear to me that he was not only taking into account the subjective matters referred to in s 8(1)(a), but as well the circumstances of the case and the purposes for which sentences may be imposed (s 5(1)). It is undoubted that an offender who makes out one or more of the circumstances set out in s 8(1)(a) may nevertheless have a conviction recorded when regard is had to all of the circumstances of the case.
The discretion belonged to the learned Magistrate, and upon consideration of his Worship’s reasons I am not satisfied that he erred in the manner suggested by the appellant. The matters referred to in s 8(1) are not to be regarded in isolation from the whole of the circumstances of the offender and the offence nor to the exclusion of the myriad of other factors to be taken into account in the sentencing process.
The appeal is dismissed.
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