Musgrave v Liyawanga - [2004] NTSC 53

Musgrave v Liyawanga & Ors; Hales v Stewart [2004] NTSC 53
PARTIES:MUSGRAVE, Raymond Mark

v
LIYAWANGA, Carole; JOHN-FORREST, Caroline; STEWART, Andrea; CARTER, Roslyn; ANKIN, Sarah Lyn; BROWN, Ollie
AND
HALES, Peter William
v
STEWART, Anthea

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NOS:JA 43, 41, 44, 42, 40, 39 of 2004
(20409621, 20406090, 20407269, 20403933, 20407213, 20406505) and
JA 45 (20404057)

DELIVERED:  6 October 2004
HEARING DATES:  20 September 2004
JUDGMENT OF:  MARTIN (BR) CJ

CATCHWORDS:

Appeals by Crown against sentence – Misuse of Drugs Act s 5(1) – unlawful supply of cannabis – plea of guilty by seven respondents – no convictions recorded – whether sentences imposed by Magistrate were manifestly inadequate – same sentence imposed upon all respondents – questions of parity and consistency in sentencing – individual circumstances of the offending and the offender must always be considered – appeals dismissed.
Misuse of Drug Act (NT) s 5(1)
REPRESENTATION:
Counsel:
Appellant:Ms A Barnett
Respondent:  Mr S Barlow
Solicitors:
Appellant:DPP
Respondent:  NAALAS
Judgment category classification:   A
Judgment ID Number:  Mar0410
Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Musgrave v Liyawanga & Ors; Hales v Stewart [2004] NTSC 53

Nos. JA 43, 41, 44, 42, 40, 39 of 2004
(20409621, 20406090, 20407269, 20403933, 20407213, 20406505)
No JA45 (20404057)
BETWEEN:

RAYMOND MARK MUSGRAVE

Appellant

AND:

CAROL LIYAWANGA

First Respondent
  CAROLINE JOHN-FORREST
Second Respondent
  ANDREA STEWART
Third Respondent
  ROSLYN CARTER
Fourth Respondent
SARAH LYN ANKIN
Fifth Respondent
  OLLIE BROWN
Sixth Respondent

AND

PETER WILLIAM HALES
Appellant

AND:

ANTHEA STEWART
Respondent

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 6 October 2004)
Introduction

The Director of Public Prosecutions (“the Director”) has appealed against penalties imposed upon seven respondents by a Magistrate sitting at Maningrida on 29 and 30 April 2004. In each instance the respondents pleaded guilty to one count of unlawfully supplying cannabis to another person contrary to s 5(1) of the Misuse of Drugs Act 1990. The penalties were identical. Without recording a conviction, the learned Magistrate released each respondent on their own recognizance in the amount of $500 to be of good behaviour for a period of 12 months. The Director submitted that each penalty was manifestly inadequate because the Magistrate erred in declining to record a conviction.
Immediately before the first of the seven respondents pleaded guilty, the Magistrate heard the plea of guilty of Ms Michelle Martin who was the co-offender of the respondent Ms Carol Liyawanga. Ms Martin pleaded guilty to one count of unlawfully supplying cannabis to another person and, without recording a conviction, the Magistrate released Ms Martin on a bond in her own recognizance of $500 to be of good behaviour for a period of 12 months. The Director submitted that the Magistrate erred in proceeding on the basis that by reason of “parity” the same penalty should be imposed upon the respondents. It is convenient, therefore, to set out first the…

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.

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Details

Case: [2004] NTSC 53
Decision Date: 6 October 2004

CaseChat Overview and Summary

In the case of Musgrave v Liyawanga, the respondent, Mr Brown, appealed against the decision of a Magistrate who did not record a conviction for a drug offence. The case came before the Court of Appeal in the Northern Territory of Australia, which was required to determine whether the Magistrate's decision was reasonable, particularly given the context of a Crown appeal. The primary legal issue was whether the Magistrate's decision to not record a conviction, despite the established pattern of not doing so for similar offences, was justified in the absence of specific submissions from the respondent's counsel. The Court had to consider whether the errors made by the Magistrate warranted interference, especially considering the unique circumstances of Crown appeals.

The Court noted that ordinarily, the Magistrate's errors would justify interference. However, given that these were Crown appeals, special considerations applied. The Court highlighted that the prosecutor's contributions to the erroneous approach in sentencing parity with respect to the other respondents also played a role. While the Court had the power to remit the matter back to the Magistrate's Court for further consideration, it was deemed unfair to the respondents to require additional hearings. The Court emphasised the need for each case to be assessed based on individual circumstances and for brief reasons to be provided, even if detailed reasoning was not mandatory. The Court also clarified that female offenders should not expect different treatment unless justified by personal circumstances, and that each offender's case must be considered independently.

Ultimately, the Court decided to exercise its discretion not to interfere with the Magistrate's decision. This decision was influenced by the special considerations of Crown appeals, the pressure on Magistrates in busy courts, and the avoidance of unnecessary additional court workload. The Court underscored the importance of assessing each case individually and providing at least brief reasons for decisions. It also highlighted that the Magistrate's remarks could potentially create a misleading impression about the treatment of female offenders and the application of sentencing discretion among a group of offenders.

The Court issued no further orders but emphasised the need for individual assessments and clear, albeit brief, reasons for sentencing decisions in similar future cases.

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

It is not unreasonable to conclude that by the time the Magistrate came to deal with the respondent Mr Brown, the pattern of not recording a conviction for this type of offence was well established. In the absence of submissions from counsel on behalf of the respondent, there was nothing in the material before his Worship which was capable of justifying proceeding without a conviction.Conclusion In ordinary circumstances the errors by the Magistrate would justify interference by this Court. However, these are Crown appeals and special considerations apply to such appeals. In addition, the tone was set by the erroneous approach to parity in sentencing with respect to the respondent Ms Liyawanga and the prosecutor contributed to that erroneous approach. Further, in the case of some respondents, if counsel for a respondent had made submissions, a case for declining to record a conviction may have been made out. I have the power to remit those matters to the Magistrate’s Court for further consideration, but there is force in the submission that such a course would be unfair to each respondent. In addition to the expense incurred in a further hearing, unnecessary additions to the busy court list at Maningrida should be avoided. The combination of circumstances has persuaded me that although errors occurred, bearing in mind the special considerations that apply to Crown appeals I should exercise my discretion not to interfere. In taking this course, however, I emphasise that in considering questions of parity and consistency in sentencing, each case must be assessed according to the individual circumstances as they relate to the offending and the offender. I appreciate the pressure under which Magistrates work in busy bush courts and their need to proceed expeditiously. However, each case must still be decided according to its individual circumstances. In addition, although detailed reasons are not required, from the point of view of the parties and the appellate court at least brief reasons should be given. There are further matters that should be emphasised. First, the remarks of the Magistrate might convey the impression that female persons who offend against the drug laws will be treated differently from male offenders. That impression is incorrect. Where their culpability is equal to that of male offenders, unless personal circumstances justify different treatment, female offenders are not entitled to extra leniency and should not expect to be treated differently from male offenders. Secondly, the incorrect impression may have been conveyed by the Magistrate’s decision that if one of a group of offenders succeeds in establishing a case for the exercise of a discretion not to record a conviction, necessarily the same result will be achieved for the other offenders. As I have said, each case must be considered individually. The fact that one offender makes out a case for the exercise of the discretion does not necessarily mean that the other offenders will similarly succeed in not having a conviction recorded.

Ratio Decidendi

Legal Principle Established

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