Wunungmurra v The Queen - [2006] NTCCA 3

Wunungmurra v The Queen [2006] NTCCA 3
PARTIES:WUNUNGMURRA, Paul Gurrumuruwuy
v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 18 of 2005 (20421645)
DELIVERED:  21 FEBRUARY 2006
HEARING DATES:  21 FEBRUARY 2006
JUDGMENT OF:  MARTIN (BR) CJ, MILDREN &
THOMAS JJ

CATCHWORDS:
CRIMINAL LAW
Appeal against sentence – allegation of miscarriage of justice because the appellant did not place all relevant material before the sentencing Judge – the additional material did not justify the exercise of discretion not to record a conviction – taking into account the additional material the original sentence was within the range of sentencing discretion – appeal dismissed.
REPRESENTATION:
Counsel:
Appellant:D Ross QC and A Bligh
Respondent:  A Elliott
Solicitors:
Appellant:NAALAS
Respondent:  DPP
Judgment category classification:         A
Judgment ID Number:  Mar0601
Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wunungmurra v The Queen [2006] NTCCA 3

No. CA 18 of 2005 (20421645)
BETWEEN:

PAUL GURRUMURUWUY WUNUNGMURRA

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, MILDREN & THOMAS JJ
REASONS FOR JUDGMENT
(Delivered 21 February 2006)
Martin (BR) CJ:

On 28 July 2005 the appellant pleaded guilty to unlawfully supplying a commercial quantity of cannabis. The learned sentencing judge imposed a sentence of two years imprisonment to be suspended after the appellant had served three months. The appellant appeals against the sentence. There is no complaint that the sentencing judge erred on the material before him, but the appellant has placed additional material before this court which should have been before the sentencing judge. Based on the additional material it is the case for the appellant that there has been a miscarriage of justice and that the sentence is manifestly excessive. In particular, the appellant submitted that he should not be required to serve any part of a sentence of imprisonment.
The facts can be stated quite briefly. Police received information that the appellant had been selling cannabis in the Lake Evella Community. When police spoke to the appellant he said, ‘I am happy you caught me, I wanted to stop selling cannabis, it is no good.’ The appellant admitted he had been selling cannabis and produced $700 cash from his wallet. He said he had sold seven sachets of cannabis that day.
The appellant voluntarily took police to a location several kilometres from Lake Evella where he had hidden a backpack containing 213 grams of cannabis. The cannabis was packed in sachets and a plastic bag and a large number of unused sachets were inside the backpack.
In a subsequent interview the appellant told police that in the preceding weeks he had accumulated $20,000 from the sale of cannabis which he had given to a person named Tom and another unknown male person. In turn, those persons were to give the funds to a named person on whose behalf the cannabis had been sold "the principal". The appellant…

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 Wunungmurra v The Queen

Details

AGLC: Wunungmurra v The Queen [2006] NTCCA 3
Case: [2006] NTCCA 3
Decision Date: 21 FEBRUARY 2006

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Wunungmurra, by a sentencing judge. The appellant alleged a miscarriage of justice had occurred because certain relevant material had not been presented to the sentencing judge at the original hearing. The appeal was heard by Martin (Br) CJ, Mildren and Thomas JJ.

The primary legal issue before the appellate court was whether the additional material, if it had been before the sentencing judge, would have justified the exercise of discretion not to record a conviction. The court was also required to determine if the original sentence imposed was within the proper range of sentencing discretion, even when considering the additional material.

The court reasoned that the additional material, when considered alongside the original material, did not alter the fundamental assessment of the appellant's culpability or the circumstances of the offence. Consequently, it did not provide a sufficient basis to depart from the usual course of recording a conviction. The appellate court concluded that the original sentence was a permissible exercise of the sentencing judge's discretion and was within the appropriate range. The appeal was therefore dismissed.

Orders