Musgrave v Roy - [2005] NTSC 40

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PARTIES: MUSGRAVE, Raymond Mark

ROY, Lilly Garamara

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: JA 3 of 2005 (20419657)

DELIVERED: 4 August 2005

HEARING DATES: 1 April 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

MAGISTRATES – Appeal from Magistrate
CRIMINAL LAW – Drug offences

Appeal against sentence – supply of cannabis – whether magistrate erred in not recording a conviction – manifest inadequacy – material error of law and fact – definition of supply – supply of cannabis in Aboriginal communities – double jeopardy – appeal allowed – conviction recorded

Cransen v R (1936) 55 CLR 509; Everett v The Queen (1994) 181 CLR 295; House v The King (1936) 55 CLR 499; R v Osenkowski (1982) 30 SASR 212; Pinkstone v R (2004) 78 ALJR 797; Scott v Perry [2003] NTSC 26, applied

R v Morton [2001] NTCCA 6; R v Thomas Edward Wesley (unreported SCNT SCC 20103640, 20 September 2001, Angel J), followed

Cobiac v Liddy (1969) 119 CLR 257; R v Hallocoglu (1992) 29 NSWLR 67, referred to

R v Billiris (SCC 20317828); v Fitirikkos (SCC 20315986), distinguished

REPRESENTATION:

Counsel:
Appellant: E Armitage
Respondent: G Dooley

Solicitors:
Appellant: DPP
Respondent: NAALAS

Judgment category classification: B
Judgment ID Number: Sou 0507
Number of pages: 9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Musgrave v Roy [2005] NTSC 40
JA 3 of 2005 (20419657)

BETWEEN:

RAYMOND MARK MUSGRAVE
Appellant

AND:

LILLY GARAMARA ROY
Respondent

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 4 August 2005)

Introduction

[1] This is an appeal by the police against a sentence that was imposed on the respondent by the Court of Summary Jurisdiction on 24 November 2004. The appeal was commenced by a notice of appeal dated 21 December 2004.
[2] On 24 November 2004 the respondent pleaded guilty to a charge that contrary to s 5(1) of the Misuse of Drugs Act (NT) on 27 August 2004, the respondent unlawfully supplied cannabis, a dangerous drug specified in Sch 2, to another person, namely the Aboriginal people of Maningrida. Mr Loadman SM found the respondent guilty of the offence charged but declined to record a conviction against the respondent. He placed her on a good behaviour bond for 12 months on her own recognisance in the sum of $500 with a $40 victims levy. The maximum penalty for the offence is a fine of $10,000 or imprisonment for five years.
The issues on appeal
[3] The grounds of appeal are that the learned magistrate erred:
1. In finding that it was an irrelevant fact for sentencing purposes that the respondent intended further acts of supply beyond the one count with which she was charged and to which she pleaded guilty.
2. In not recording a conviction.
[4] The principal issue is whether…

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 Musgrave v Roy

Details

AGLC: Musgrave v Roy [2005] NTSC 040
Case: [2005] NTSC 40
Decision Date: 04 August 2005

CaseChat Overview and Summary

In Musgrave v Roy, the Supreme Court of the Northern Territory heard an appeal by the police against the sentence imposed on Lilly Garamara Roy by the Court of Summary Jurisdiction. The appeal centred on the magistrate's decision not to record a conviction for Roy, who had pleaded guilty to supplying cannabis to Aboriginal people in Maningrida. The primary legal issue was whether the magistrate erred in not recording a conviction, considering the substantial quantity of cannabis involved in the offence. The court found that the magistrate's failure to record a conviction and the underestimation of the offence's seriousness constituted a material error of law and fact. The court highlighted that the definition of "supply" under the Misuse of Drugs Act encompasses broader acts than just actual delivery or sale, and Roy's involvement in transporting and preparing 115 grams of cannabis for sale warranted a conviction.

The court's reasoning emphasised that the true quantity of the drug supplied was a crucial factor in assessing the offence's seriousness. Despite Roy only selling 1.5 grams at the time of her arrest, she had transported and planned to sell a much larger quantity, aligning with the broader definition of "supply." The court concluded that the sentence imposed was manifestly inadequate and failed to appropriately weigh the objective seriousness of the offence. The court also noted that supplying such a quantity in an Aboriginal community warranted a conviction and potential imprisonment, distinguishing the case from others where the cannabis was intended for personal use. The court allowed the appeal, set aside the decision not to record a conviction, and recorded a conviction for the offence. However, considering Roy's background, age, and the time elapsed since the offence, the court decided against imposing a term of imprisonment.

Orders