Nayidawawa v Moore; Nabegeyo v Middleton - [2007] NTSC 63

Nayidawawa v Moore; Nabegeyo v Middleton [2007] NTSC 63
PARTIES:NAYIDAWAWA, ALAN

v
MOORE, DAVID

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 32 of 2007 (20703542)
PARTIES:NABEGEYO, ASHRA

v
MIDDLETON, TRACY DALE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 33 of 2007 (20624595)
DELIVERED:  14 November 2007
HEARING DATES:  30 October 2007
JUDGMENT OF:  MILDREN J
APPEAL FROM:  Court of Summary Jurisdiction
CATCHWORDS:

CRIMINAL LAW – appeal against recording of conviction – whether recording a conviction unjust – possession of cannabis in public place – cannabis destined for remote Aboriginal community – principles of general deterrence not to be used to convey a message to a specific ethnic community but to members of the community generally – relevance of fact that matter could be dealt with by infringement notice – first offenders – possibility of harm to others – liability to mandatory minimum prison sentence on subsequent conviction – extent to which offences trivial – weight to be given to general deterrence
Statutes:
Criminal Records (Spent Convictions) Act, s 6(2), s 7(1), s 11, s 12, s 15
Misuse of Drugs Act, s 9(1), s 9(2)(f)(i), s 9(2)(f)(ii), s 20B, s 20B(1), s 20F(b), s 37(1)(a), s 37(2)(b), s 37(3)
Sentencing Act, s 8, s 8(1)(a), s 8(1)(b), s 13
Citations:
Followed:
Attorney-General v Smith [2002] TASSC 10
House v The King (1936) 55 CLR 499
R v Truong [2005] VSCA 147
Referred to:
Cobiac v Liddy (1969) 119 CLR 257
Daniels v The Queen [2007] NTCCA 9
Kyle v Rigby [2007] NTSC 57

Pearce-Grove v Thomas [1998] NTSC 24
R v Briese, ex parte Attorney-General (1998) 1 Qd R 487
Zefi v Police [2003] SASC 218

REPRESENTATION:
Counsel:
Appellant:J Noud
Respondent:  C Baohm
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Nayidawawa v Moore; Nabegeyo v Middleton [2007] NTSC 63

No. JA 32 of 2007 (20703542); JA 33 of 2007 (20624595)
BETWEEN:

ALAN NAYIDAWAWA

Appellant

AND:

DAVID MOORE

Respondent

AND BETWEEN:

ASHRA NABEGEYO

Appellant

AND:

TRACY DALE MIDDLETON

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 14 November 2007)

These two appeals from the Court of Summary Jurisdiction were heard together. In both cases the appellants had pleaded guilty to a single count of possession of cannabis in a public place, contrary to s 9(1) and s 9(2)(f)(i) of the Misuse of Drugs Act. The maximum penalty for that offence is a fine of $5,000 or imprisonment for two years. The learned Magistrate in each case convicted the appellants and ordered that each of the appellants be released on a 12 month good behaviour bond pursuant to s 13 of the Sentencing Act.
The grounds of appeal in each case are as follows:
“1.The learned…

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: [2007] NTSC 63
Decision Date: 14 November 2007

CaseChat Overview and Summary

The appellants Nayidawawa and Nabegeyo were convicted of possession of cannabis in a public place. The appellants appealed against the recording of their convictions, arguing that it was unjust in their respective circumstances. The appeal was heard by the Supreme Court of the Northern Territory. The primary legal issue was whether the recording of the convictions was unreasonable or unjust, particularly in light of the potential for a no-conviction bond and the consideration of general deterrence in sentencing. The court examined the circumstances of each appellant, including their age, prior criminal history, the intent behind their actions, and the potential for harm to the community.

The court concluded that while the learned Magistrate was entitled to consider the impact of cannabis in Aboriginal communities, the failure to exercise the discretion in favor of the appellants was not unreasonable or unjust in Nayidawawa’s case. Nayidawawa had no prior convictions but had intended to smuggle the cannabis into a community without police presence, potentially setting a bad example and increasing the risk of harm to others. The court found that general deterrence was warranted. Conversely, in Nabegeyo’s case, the court found that less weight should be given to general deterrence due to her young age, lack of prior convictions, and the plea of guilty. The court deemed it unreasonable and unjust to record a conviction in her case, given the minimal amount of cannabis involved and the potential negative impact on her employment prospects.

The court dismissed Nayidawawa's appeal and allowed Nabegeyo's appeal. It set aside the sentencing order for Nabegeyo and ordered her release on a bond of $1,000 to be of good behavior for 12 months, without recording a conviction.

Orders

Orders of the court

1. In the case of Mr Nayidawawa, I would dismiss his appeal.

2. In the case of Ms Nabegyo, I would allow her appeal, set aside the sentencing order imposed by the learned Magistrate and, in lieu thereof, order pursuant to s 11 of the Sentencing Act that without recording a conviction she be released upon her entering into a bond in the sum of $1,000 O/R to be of good behaviour for a period of 12 months calculated from 30 May 2007.

Background

Background to the litigation

The submission of the appellant’s counsel was that in all the circumstances a no-conviction bond was appropriate, particularly as the matter could have been disposed of by an infringement notice under s 20B of the Misuse of Drugs Act.Facts in the case against Ms Nabegeyo On Tuesday 26 September 2006 the appellant, whilst staying in Darwin, was given 24.5 grams of cannabis by an undisclosed person. She placed the cannabis inside a bag of groceries. At 8.30 am on the same day the appellant caught a taxi to Murin Airways at Darwin Airport where she left the groceries (including the cannabis) and paid for them to be sent to Croker Island. The airline suspected that the groceries contained cannabis and alerted the police. A police drug detector dog indicated the presence of a drug in the grocery bag. Police then located the appellant who gave them permission to search the bag and the cannabis was found. The appellant participated in an electronic record of interview and made admissions. At the time Murin Airways was a public place. The appellant had no prior convictions of any kind. She was 22 years of age at the time, single and living with her grandparents on Croker Island, where she has lived all of her life. She had no children. The appellant was unemployed, but keen to find employment. The submission of the appellant’s counsel was that in all the circumstances there should be a no-conviction bond. There was no suggestion that she intended to supply others.Reasons of the learned Magistrate In rejecting the applications not to record a conviction the learned Magistrate said that the quantity was not a small amount, that the cannabis was directed to go to a remote Aboriginal community and that notwithstanding that the appellants faced the prospect of a mandatory sentence of imprisonment for another offence against the Act, it was necessary to impose a deterrent sentence despite the appellants’ lack of prior convictions because of the “severe significant impacts of cannabis in Aboriginal communities, such as economic impacts, health impacts and the like”. In the case of Mr Nayidawawa, the learned Magistrate also referred to the lack of a police presence on Goulburn Island and referred also to ‘direct crime results’ from cannabis in the communities.Ground 1 of the appeals Counsel for the appellants submitted that the remarks of the learned Magistrate indicated that there was a finding of uncharged acts, namely the supply of cannabis to others, in respect of which neither had been charged. I am unable to accept that submission. The comments of the learned Magistrate do not go that far. Indeed they do not even suggest an intent to supply others. The observations about the impact of cannabis in Aboriginal communities are quite consistent with the charge of possession. There is always a risk that cannabis can come into the possession of others later. It may be stolen; it may be humbugged or shared. The effects of cannabis to which the learned Magistrate referred might be experienced only by the appellant. Using cannabis may encourage others to do the same. It is clear that this is what the learned Magistrate had in mind when he said “that someone taking cannabis into communities is doing a disservice to the community because of the problem that it causes irrespective of whether it’s for supply or not, it’s just the simple fact that it’s there”. There is no substance to this submission.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The learned Magistrate was entitled to take that into account, but in this case, although the intent was to bring the cannabis into the communities, in fact the cannabis never left Darwin. In any event, I do not think that their Honours’ remarks in Daniels would preclude a court in a proper case from dealing with the matter under s 8 of the Sentencing Act, particularly as a finding of guilt would in itself expose an offender to a possible mandatory minimum sentence of imprisonment even many years hence for a further offence. That at least serves the purpose of specific deterrence.Conclusion In my opinion, no specific error has been shown and the only question is whether the failure to exercise the discretion in favour of the appellants could be described as “unreasonable or plainly unjust” so that error might be inferred. In the case of Mr Nayidawawa, although he had no prior convictions, his intent was to smuggle the cannabis into a community, which as the learned Magistrate observed, had no police presence. As he lived with his wife and four children, there was greater potential for harm to others had he succeeded. As a senior man, his criminality set a bad example in his community. He was caught red-handed. An element of general deterrence was justified. I bear in mind that although the possession occurred in a public place it was not visible to others, that the amount of the cannabis was less than half the trafficable quantity, but it was not insignificant. His future prospects of employment do not appear to be likely to be affected. I do not think, taking into account all of the circumstances including his plea of guilty, I can conclude that the learned Magistrate’s decision was unreasonable or unjust. There were factors present which warranted the course taken. I would dismiss his appeal. The case of Ms Nabegeyo is, I think, quite different. She not only had no convictions but she was a relatively young offender being only 22 years of age. She lived with her grandparents and had no children. There is no evidence that her possession of the cannabis might cause a potential risk to children or others. Her plea of guilty was made in circumstances where there might have been difficulty in proving that she knew that the cannabis was in her groceries without her admissions. A conviction is likely to have a not insignificant effect on her future prospects of employment. In her case I think less weight should have been given to general deterrence because of her age and plea of guilty. The amount of the cannabis was less than half the trafficable quantity and it was not visible to others. I think that it was unreasonable or unjust to record a conviction in all of the circumstances. I would therefore allow her appeal, set aside the sentencing order imposed by the learned Magistrate and, in lieu thereof, order pursuant to s 11 of the Sentencing Act that without recording a conviction she be released upon her entering into a bond in the sum of $1,000 O/R to be of good behaviour for a period of 12 months calculated from 30 May 2007.

Ratio Decidendi

Legal Principle Established

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