Brian Jones v Simon Tu
[2013] ACTSC 168
•18 July 2013
BRIAN JONES v SIMON TU
[2013] ACTSC 168 (18 July 2013)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 98 of 2012
Judge: Higgins CJ
Supreme Court of the ACT
Date: 18 July 2013
IN THE SUPREME COURT OF THE )
) No. SCA 98 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BRIAN JONES
Appellant
AND:SIMON TU
Respondent
ORDER
Judge: Higgins CJ
Date: 18 July 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
In this case it was difficult, particularly with the Crown appeal, to determine what the consequence should be. There are two questions involved. One is of principle. Now there is the consequence in the particular case. Not infrequently, the court states a principle but does not alter the result in respect of the individual, and for reasons that may be thought to be merciful or otherwise, but also reflect the principle that the person has already been in jeopardy once. It is not quite double jeopardy. Really, that is the wrong description, but they have been vexed twice with the same proceeding.
And that itself is a penalty. What I would say in this case is that the appropriate penalty would have been a fine. I would have myself imposed a fine of $3,000 on the first count and $2,000 on the second. Having regard to the state of the premises, I think any less a fine would be quite inadequate. In this case, I have regard to the lack of any prior criminal history on the part of the appellant, his evident remorse and the fact that it has cost him a great deal already because he has had to shut the business down. So for him there has been sufficient personal deterrence.
Of more concern, is the need for a general deterrence against restaurateurs who neglect their premises, so that the public is not, at least, potentially put at risk of some illness or deleterious consequences. That is certainly apt in the present case.
As I say, the penalties which are prescribed of $75,000 and $50,000 respectively, are not insignificant penalties. And in this case, it would have been mitigated to some extent by the fact that Mr Tu had pleaded guilty, and the other matters that I have referred to which do indicate his appreciation that that was wrong, and he should not risk that in the future irrespective of the fact that he might have been legally permitted to carry on.
The question then is, what to do. In this case, there is this; while it has not been put in terms of admissible evidence, but in any case of this kind where there is a plea of guilty – particularly in the Magistrates Court but also here – counsel will often put what their instructions are and invite the court to accept that as a question of fact. Ordinarily, unless the prosecution puts the accused to proof, that would be accepted, even in a case where the accused bore the onus of establishing that mitigating factor. In this case, the circumstances are such as to indicate that the instructions Mr O’Brien states that he has obtained would seem to be certainly not beyond acceptance. I note there has been no suggestion he should give evidence to that effect, albeit we have an interpreter present. I understand that. So I will proceed on the basis that, effectively, a fine would be futile.
Now, of course, that does not prevent a fine being imposed, and leaving it to the authorities to endeavour to recover, if they can, that fine. But on the other hand, if it is futile, that only puts the public to further expense. That may well be warranted in some circumstances, particularly whereas here, of course the only penalty that can be imposed apart from a good behaviour order, is a fine. What the interest that the Crown seeks to vindicate in this case, is the general principle in a matter of this kind; for an offence of this kind, a fine would have been appropriate.
I can indicate now that I would have thought that a fine of $3,000 and $2,000 respectively, would have been appropriate. But I think, in the circumstances, the likelihood of Mr Tu being able to pay such fines would be miniscule. It may be that his family would wish to pay it for some reason or another. They would not be obliged to. It would not be appropriate to put them under any sort of moral obligation to do that, in case they might think, notwithstanding the legal position, that they should.
So in those circumstances, I make the declaration that I have just made, but I decline to alter the penalty imposed by the learned magistrate as a matter of discretion. The Crown appeal is dismissed, but the grounds for it are made out.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 16 August 2013
Counsel for the Appellant: Ms L Taylor
Solicitor for the Appellant: Director of Public Prosecutions for the ACT
Counsel for the Respondent: Mr M O’Brien
Solicitor for the Respondent: Legal Aid ACT
Date of hearing: 18 July 2013
Date of judgment: 18 July 2013
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