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Presswell v Burgoyne [2005] NTSC 67

PARTIES: PRESSWELL, Daryl

BURGOYNE, Robert Roland

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: No JA 29 of 2005 (20426796)

DELIVERED: 21 October 2005

HEARING DATE: 23 September 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

MAGISTRATES – Appeals from Magistrates
CRIMINAL LAW – Miscellaneous offences

Appeal against sentence, aggregate sentence, manifestly excessive sentence

Fines and Penalties (Recovery) Act; Justices Act; Misuse of Drugs Act; Sentencing Act, s 52; Summary Offences Act

Kelly v The Queen (2000) 10 NTLR 39, approved
Markarian v The Queen (2005) 79 ALJR 1048; Putland v The Queen (2004) 218 CLR 174, applied

REPRESENTATION:

Counsel:
Appellant: R Goldflam
Respondent: CW Roberts

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Sou 0512
Number of pages: 7

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

Presswell v Burgoyne [2005] NTSC 67
No. JA 29 of 2005 (20426796)

IN THE MATTER OF the Justices Act

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

BETWEEN:

PRESSWELL, Daryl
Appellant

AND:

BURGOYNE, Robert Roland
Respondent

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 21 October 2005)

INTRODUCTION

[1] The appellant appeals against the sentence of imprisonment that was imposed on him by the Court of Summary Jurisdiction on 29 July 2005. After convicting the appellant of unlawfully possessing a trafficable quantity of cannabis at Alice Springs on 24 November 2004 and of having in his custody $11,050 cash that was reasonably suspected by police of having been obtained from the sale of cannabis, the Court of Summary Jurisdiction sentenced the appellant to an aggregate term of imprisonment of two months suspended forthwith on condition that the appellant undergo two months home detention. The charge of unlawfully possess a trafficable quantity of cannabis was brought on information for an indictable offence. The charge of being reasonably suspected of having otherwise unlawfully obtained the $11,050 was brought on complaint.

[2] The appeal is made pursuant to s 163 Justices Act. It was commenced by notice of appeal dated 2 August 2005. The appellant has been on bail since the notice of appeal was filed in the Court of Summary Jurisdiction. He served four days home detention before being bailed.

THE ISSUES

[3] There are three grounds of appeal. First, the Court of Summary Jurisdiction erred in imposing an aggregate sentence for the two offences for which the appellant was convicted because the charges were not joined in the same information for an indictable offence nor the same complaint. Secondly, the learned magistrate failed to have proper regard to the appellant’s plea of guilty to unlawfully possessing a trafficable quantity of cannabis. Thirdly, the sentence of imprisonment was manifestly excessive.

[4] In my opinion the appeal…

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 Presswell v Bourgoyne

Details

AGLC: Presswell v Bourgoyne [2005] NTSC 067
Case: [2005] NTSC 67
Decision Date: 21 October 2005

CaseChat Overview and Summary

In Presswell v Bourgoyne, the appellant, Daryl Presswell, appealed against the sentence imposed by the Court of Summary Jurisdiction in the Northern Territory. The case involved two offences: unlawfully possessing a trafficable quantity of cannabis and having in his custody $11,050 cash that was reasonably suspected of being obtained from the sale of cannabis. The Court of Summary Jurisdiction sentenced the appellant to an aggregate term of imprisonment of two months suspended forthwith, with the condition that the appellant undergo two months of home detention. The appellant contested the sentence on three grounds: the imposition of an aggregate sentence, the magistrate's consideration of his guilty plea, and the sentence's excessiveness.

The court found that the first ground of appeal was valid. The court noted that the power to impose an aggregate sentence of imprisonment is limited by section 52 of the Sentencing Act, which requires that the offences be joined in the same information or complaint. As the charges were not joined in the same information or complaint, the court deemed the aggregate sentence improper. The court also highlighted that the power to impose an aggregate sentence should be used cautiously, especially when sentencing for offences of markedly different natures.

The court dismissed the second and third grounds of appeal. The learned magistrate had clearly stated that she gave the appellant a discount for pleading guilty to the cannabis possession charge. Furthermore, no comparative sentences or other evidence indicated that the sentence was manifestly excessive. The court emphasized that the sentence, while towards the upper end of the range for such offences, did not demonstrate any other error in principle beyond the aggregation issue.

The court quashed the sentence of imprisonment imposed on the appellant by the Court of Summary Jurisdiction and re-sentenced the appellant. Considering the facts of the case, including the appellant's personal use of cannabis, his age, and his prospects of rehabilitation, the court concluded that a penalty of imprisonment was not warranted. Instead, the court ordered the appellant to pay a fine of $1,000, to be paid within 28 days, with the possibility of an extension under the Fines and Penalties (Recovery) Act. The court also quashed the conviction for the charge related to the $11,050 cash.

Orders