Pearce-Grove v Thomas [1998] NTSC 24

The learned stipendiary magistrate convicted and sentenced the appellant to a bond to be of good behaviour for 12 months, $750, own recognizance. The sentence imposed was within the learned stipendiary magistrate's sentencing discretion and the appellant did not seek to argue otherwise.

The facts of the offence, as appeared before the learned stipendiary magistrate, are as follows:

"At about 7:30 am on the morning of Wednesday 14 May 1997 the defendant was spoken to by police in relations to another matter at her home residence of Unit 10/3 Margaret Street, Stuart Park. The defendant was the occupant or the tenant of the flat. Whilst police were speaking to her in relation to that other matter they observed five cannabis plants growing on the rear balcony of the unit. She was spoken to in relation to the cannabis. At this time the defendant acknowledged that she was the cultivator of it and that it was hers and when asked what it was for she said that she used it for herself. She was then informed that she would receive a summons."

Counsel for the appellant then told the learned stipendiary magistrate that the initial matter the appellant was being spoken to about did not concern her.

1. The learned stipendiary magistrate erred in his direction on the good character of the appellant; and

2. The learned stipendiary magistrate erred in law by taking into account irrelevant considerations and made findings not based on any evidentiary material before him.

"Ground 1: The learned stipendiary magistrate erred in his direction on the good character of the appellant"

Counsel for the appellant submits that the following passages taken from the learned stipendiary magistrate's reasons for sentence demonstrate error (t/p 7):

"Character is a multi-faceted thing. A person of good character to one individual would be viewed differently by another individual. Some people will say about a certain person he is a good bloke. Other people will say about that same person he's not a good bloke. He's the opposite. I use that example to try and demonstrate the nature of character ..... to some the defendant would be a person of good character but to others in the community who abhor drug use and drug cultivation, she would not be considered to be a person of good character."

"To my mind in this case there has to be a conviction. There has to be a conviction for the simple reason that people of good character grow cannabis and use cannabis. It's a known fact that people come to the court of good character who contribute to the community, but there is an aspect of their character whereby although they're of that good character where they contribute to the community, they consume or they take illegal drugs such as cannabis. To my mind there has to be a conviction despite the defendant's good character in this case to show people in the community, especially people of good character , that they cannot grow cannabis or use cannabis." (emphasis added)

"There has to be a conviction because there has to be a reflection of general deterrence. Something has to be done to show those people in the community who are generally of good character that feel the need to break the law to grow or consume drugs, that the behaviour is inappropriate."

Counsel for the appellant submitted on behalf of the appellant that the learned stipendiary magistrate seemed to be saying that there had to be a conviction to deter a specific group of people in the community - that is, people of good character, from cultivating and possessing cannabis. Counsel for the appellant further submits that s5(2)(e) and s(6) of the Sentencing Act set out the way in which character evidence is to be taken into account. Section 5(2)(e) states:

"In sentencing an offender, a court shall have regard to - .....

(e) the offender's character, age and intellectual capacity ...."

Section 6, entitled "Factors to be considered in determining offender's character", states:

"In determining the character of an offender, a court may consider, among other things -

(a) the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender;

(c) any significant contributions made by the offender to the community."

Counsel for the appellant referred to a number of authorities in support of the submission that the appellant is entitled to rely on her previous good character, and the absence of any prior convictions, and that weight should be given to these antecedents ( Philip John Smith (1982) 7 A Crim R 437 at 442; R v Ireland (1987) 49 NTR 10 at 24). In the case of Unal Okutgen (1982) 8 A Crim R 262 at 266, which involved a forty year old applicant, Starke J, with whom the court agreed, framed the principle in these terms:

"A man of this age, when first convicted, can I think call in aid his character and is entitled to ask the court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up till the moment of conviction."

In the appellant's submission, the learned stipendiary magistrate gave insufficient weight to the appellant's antecedents.

Counsel for the appellant also relied on the appellant's age as a factor to be considered with regard to how long the appellant has been of good character: for example, The Queen v Nagas , (1995) 5 NTLR 45.

Ms Cox, counsel for the appellant, submitted that the learned stipendiary magistrate made a further error regarding good character, in depicting that Ms Pearce-Grove was of good character except for this offence (t/p 6):

"She is a person of good character - there is no doubt about that - with one exception, and that one exception is that she's a person of good character who engaged in an illegal activity, that is she grew cannabis."

In Ms Cox's submission, it is past good character only which is to be considered, otherwise every person appearing before the court would have at least one blemish on their character.

It was submitted by counsel for the respondent that there was no error in that the learned stipendiary magistrate imposed a sentence that was well within the range available to him and he did in fact find that the appellant was a person of good character. The learned stipendiary magistrate specifically referred to the criteria in s6 of the Sentencing Act , he found that good character was a factor which should be taken into account and he did consider it for the purposes of sentencing. It was not disputed that the appellant was someone who had made a significant contribution to the community. In this case, good character had a substantial mitigatory effect, namely, it persuaded the magistrate to avoid an actual custodial term under s37(2) Misuse of Drugs Act .

I agree that the conviction and sentence imposed by the learned stipendiary magistrate were within the sentencing range. I also agree that, in the final analysis, good character was mitigatory in the sense that it went towards the avoidance of the operation of s37(2) Misuse of Drugs Act . It seems however, from the comments by the learned stipendiary magistrate (t/p 7), that he proceeded to conviction specifically to deter other persons of good character. The submission made to the learned stipendiary magistrate was that he not proceed to conviction. The learned stipendiary magistrate effectively made an example of this person of good character in order to specifically deter other persons of good character. The appellant was entitled to have her prior good character taken into account in her favour. I have come to the conclusion that his Worship was in error in the directions he gave himself as tot he character of the appellant. In addition I agree with the submission made by counsel for the appellant that it is past good character only, which is to be considered and that in stating that the exception to her good character was the commission of the present offence his Worship fell into error.

Having found error in the way in which the learned stipendiary magistrate exercised his sentencing discretion, I propose to allow the appeal, quash the conviction and impose sentence under s177(2) of the Justices Act .

In imposing sentence I have regard to the following factors.

In respect of the offence itself, it was at the lower end of the scale. There were five plants, which is considered a small number of plants. They weighed a total of 62.5 grams. It is not suggested that the plants were for any purpose other than the appellant's own use. I note that possession of cannabis involving 50 grams or less can be dealt with by the issue of an infringement notice.

The appellant is a mature woman aged 41 years. She is a first offender without prior conviction. I have regard to her prior good character. It is not in dispute that she has an impressive record of contributions made to the community. She held a number of positions on various boards and committees including the Top End Women's Legal Help Service, Indigenous Community for Consumer Affairs, the Review Panel for the Northern Territory Legal Aid Commission and the Board of the RSPCA. The appellant had been involved with Aboriginal Curriculum Development at TAFE, developing courses in National Indigenous Studies. She tutored at Batchelor College and developed the Indigenous Legal Studies course.

In 1993 the appellant took up a position with the Domestic Violence Legal Help Service a position from which she resigned after a period of four years. The nature of her work had been extremely stressful. Following her resignation in February 1997, she continued to receive threats over the telephone relating to her previous work for the Domestic Violence Legal Help Service. At the time of the commission of this offence she had considerable personal stress as a consequence of the death of a number of members of her family and because of her own severe health problems. At the time this matter came before the Court of Summary Jurisdiction, the appellant was an inpatient at the self care unit of Royal Darwin Hospital. She had chronic liver disease and peripheral neuropathy and had medical advice that she may be unable to walk for two to three years. The appellant is entitled to have her plea of guilty taken into account and also the fact that she cooperated with the authorities.

I impose the following sentence pursuant to s11 of the Sentencing Act .

I confirm the offence is proved. Without recording a conviction I order that the appellant be released upon her giving security in the amount of $500 own recognisance to be of good behaviour for a period of 12 months.