Miller v Burgoyne - [2004] NTSC 47

[Back to Main List] [Back to NTSC 2004 List] Miller v Burgoyne [2004] NTSC 47

PARTIES: GEOFFREY BRIAN MILLER

ROBERT ROLAND BURGOYNE

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO: JA 56 of 2003 (20314610)

DELIVERED: 7 September 2004

HEARING DATES: 31 August 2004

JUDGMENT OF: OLSSON AJ

REPRESENTATION:

Counsel:
Applicant: A. Hopkins
Respondent: C. Roberts

Solicitors:
Applicant: Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Number of pages: 13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Miller v Burgoyne [2004] NTSC 47
No JA 56 of 2004 (20314601)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

BETWEEN:

GEOFFREY BRIAN MILLER
Applicant

AND:

ROBERT ROLAND BURGOYNE
Respondent

CORAM: OLSSON AJ

REASONS FOR JUDGMENT

(Delivered 7 September 2004)

[1] This is an appeal against the sentence imposed on the appellant on 18 November 2003 by the Magistrates Court sitting at Alice Springs.
[2] The appellant was arrested on 31 July 2003 and charged with six counts under s 5(1) of the Misuse of Drugs Act. The first four counts asserted an unlawful supply of cannabis to another person. The fifth asserted an unlawful possession of cannabis plant material and that the amount of that material was a traffickable quantity, namely 57.5g. The sixth alleged possession of money or other property, namely $150 cash, reasonably suspected of being the proceeds of an offence, namely selling cannabis.
[3] These matters came before the authorised Stipendiary Magistrate for the Drug Court in the Southern Region, established in accordance with the announcement of the Minister for Justice and Attorney General made on 11 August 2003 concerning a new initiative that aimed to target and reform offenders addicted to illicit drugs, through treatment and rehabilitation. The learned magistrate had undergone specific training for that appointment.
[4] As I understand the material made available to me, this was an experimental program of a nature similar to the Court Referral, Evaluation for Drug Intervention and Treatment program that had been found to be successful in Victoria. The program introduced by the Minister is titled CREDIT NT.
[5] The program has not been based on any specific legislative footing. It is an informal, albeit government-sponsored, initiative the aims of which are said to be "to reduce illicit drug use and related crime by participants, reduce the likelihood of a sentence involving incarceration, reduce the cost to the justice and health systems and improve the health and social contribution of the participants." (The emphasis is mine.)
[6] In his announcement the Minister said:
"Under the new drug Court program Magistrates can divert offenders who have allegedly committed crime to fund their drug habit to drug intervention and treatment programs.

Suitable offenders will enter a treatment and rehabilitation program extending up 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 Miller v Burgoyne

Details

AGLC: Miller v Burgoyne [2004] NTSC 047
Case: [2004] NTSC 47
Decision Date: 07/09/2004

CaseChat Overview and Summary

Geoffrey Brian Miller appealed against his sentence imposed by the Magistrates Court in the Northern Territory. Miller was convicted of six counts under the Misuse of Drugs Act, including unlawful supply of cannabis and possession of cannabis and proceeds of crime. The case involved the CREDIT NT scheme, a government-sponsored initiative aimed at reducing drug-related crime through treatment and rehabilitation. The court had to determine whether the sentence imposed by the Magistrate was appropriate given Miller's successful participation in the CREDIT NT program.

The court found that the Magistrate's approach to sentencing did not align with proper sentencing principles. The court held that the Magistrate's focus on general deterrence led to a compromise sentence that did not fully recognise the factor of general deterrence and was potentially counterproductive. The court also noted that requiring Miller to serve a portion of the custodial sentence could deter potential participants from meaningfully engaging in the CREDIT NT program. The court concluded that in cases where diversion is sanctioned and participation is successful, the primary focus should shift from general deterrence to rehabilitation, which could typically involve fully suspending the custodial sentence.

The appeal was allowed, and the sentence was set aside. The court imposed a sentence of imprisonment for four months, fully suspended for 18 months, subject to conditions including supervision by Community Corrections and attendance at appropriate programs.

Orders