Bui v Police - [2012] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUI v POLICE
[2012] SASC 72
Judgment of The Honourable Chief Justice Doyle
8 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
Appellant appeals against sentences imposed by a Magistrate – the appellant pleaded guilty to possession of a dangerous article and accepting ammunition as a gift when not having a licence to possess a firearm to fire that type of ammunition, and was sentenced to 14 days’ imprisonment – the appellant pleaded guilty to possession of a controlled drug and possession of prescription dugs, and was sentenced to 14 days’ imprisonment – the appellant pleaded guilty to one count of indecent filming and was sentenced to 30 days’ imprisonment – the Magistrate directed that the sentences be served cumulatively – this resulted in a total head sentence of 58 days – no non-parole period was fixed – the appellant appealed against that sentence.
The ground of appeal was that the sentence imposed by the Magistrate was manifestly excessive – the issues on appeal were: (1) whether the Magistrate failed to consider s 11 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) – whether it was appropriate to impose a sentence of imprisonment for each offence, if s 11 of the Sentencing Act was enlivened – whether the Magistrate failed to consider alternative penalties to imprisonment; (2) whether the Magistrate gave too much weight to the appellant’s history of drug offending; (3) whether the Magistrate failed to give sufficient weight to the circumstances of each offence and the absence of prior offending for those offences other than the drug offences.
Held: (1) Section 11 of the Sentence Act was enlivened and the Magistrate had the power to impose a sentence of imprisonment – it was not of itself an error that the Magistrate did not spell out his approach to s 11 of the Sentencing Act in his sentencing remarks – it was clear that the Magistrate considered imprisonment to be the appropriate sentence; (2) the Magistrate did not erroneously emphasise the significance of the appellant’s history of drug offending; (3) the Magistrate should not have imposed a sentence of imprisonment for the offences of possession of a dangerous article and accepting ammunition as a gift in the circumstances – in the light of the appellant’s history of drug offending, it could not be said that the sentence imposed for the drug offences was manifestly excessive – the offence of indecent filming warranted imprisonment.
Appeal allowed.
Summary Offences Act 1953 (SA) s 15(1b)(b), s 23AA(1); Firearms Act 1977 (SA) s 21B(1); Criminal Law (Sentencing) Act 1988 (SA) s 11, s 11(1)(a)(iii), s 18A; Controlled Substances Act 1984 (SA) s 18(3), s 36(1), s 37(3), s 40, s 33L(1)(a), referred to.

BUI v POLICE
[2012] SASC 72
Magistrates Appeal: Criminal

DOYLE CJ: On 3 February 2012, a Magistrate sentenced Mr Bui to imprisonment for a total of 58 days, having directed the accumulation of separate sentences for a number of separate offences. Mr Bui now appeals against those sentences.
Background
On 4 May 2010, after stopping Mr Bui in his motor vehicle, the police observed a slingshot resting on the centre console armrest of his car. Mr Bui was charged with possession of a dangerous article contrary to s 15(1b)(b) of the Summary Offences Act 1953 (SA) (SOA). The maximum penalty for this offence is a fine of $7,500 or imprisonment for 18 months.
The police also found a single round of .45 calibre ammunition in a black box on the driver’s seat near the centre console. Mr Bui was charged with accepting ammunition as a gift when he was not the holder of a firearms licence authorising possession of a firearm to fire that type of ammunition, contrary to s 21B(1) of the Firearms Act 1977 (SA). The maximum penalty for this offence is a fine of $10,000 or imprisonment for 2 years.
For each of the above offences the Magistrate recorded a conviction and, using the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), imposed a single sentence of imprisonment of 14 days, reduced from 21 days on account of Mr Bui’s pleas of guilty.
On 19 July 2010 the police searched Mr Bui’s home and found what appeared to be methamphetamine, inside the spool of a sewing machine. Initially, the police referred Mr Bui to an assessment service for treatment pursuant to s 36(1) of the Controlled Substances Act 1984 (SA) (CSA). However, Mr Bui failed to comply with a condition of the referral by failing to attend scheduled appointments. The referral was terminated in accordance with s 37(3) of the CSA. The police, relying on s 40 of the CSA, then had the substance analysed. The substance contained 0.4 grams of methamphetamine. Mr Bui was charged with possession of a controlled drug, contrary to s 33L(1)(a) of the CSA. The maximum penalty for this offence is a fine of $2000 or imprisonment for 2 years or both.
During the same search of Mr Bui’s home, the police found a quantity of prescription drugs. Mr Bui did not have a prescription for the drugs. Mr Bui was charged with possession of prescription drugs, namely Citalopram and Alprazolam, contrary to s 18(3) of the CSA. The maximum penalty for this offence is $10,000 or imprisonment for 2 years.
In relation to each of the above offences, the Magistrate recorded a conviction and, again making use of s 18A of the Sentencing Act, imposed one sentence of imprisonment for 14 days reduced from 21 days on account of Mr Bui’s pleas of guilty.
On 29 June 2010 the police performed another search of Mr Bui’s home after receiving a complaint that he had been filming himself having consensual sexual intercourse with sex partners. The police seized and analysed DVDs and storage devices, and found films of the kind alleged. Mr Bui was charged with three counts of indecent filming contrary to s 23AA(1) of the SOA. The maximum penalty for this offence is $10,000 fine or imprisonment for two years. Mr Bui pleaded guilty to one count. The other two counts were withdrawn. The Magistrate imposed a sentence of 30 days’ imprisonment, reduced from 42 days on account of Mr Bui’s plea of guilty.
The Magistrate directed that each sentence be served cumulatively. This resulted in a total head sentence of 58 days’ imprisonment. The Magistrate did not fix a non-parole period.
Submissions on appeal
Ms Parham, counsel for Mr Bui on appeal, argues that the sentence imposed by the Magistrate was manifestly excessive. The decision of the Magistrate to record a conviction for each offence is not challenged.
First, Ms Parham submits that the Magistrate failed to consider alternative penalties to imprisonment.
Secondly, Ms Parham complains that the Magistrate failed properly to consider s 11 of the Sentencing Act, and submits that it was not appropriate for the Magistrate to impose a sentence of imprisonment in the circumstances. Ms Parham contends that even if it was open to the Magistrate to impose a sentence of imprisonment, the Magistrate nevertheless failed to consider whether imprisonment was the appropriate sentence for each offence.
Ms Parham also complains that the Magistrate did not expressly consider s 11 of the Sentencing Act in his reasons and that during sentencing submissions counsel were not heard on the application of s 11 of the Sentencing Act or the appropriateness of a sentence of imprisonment for each offence.
Thirdly, Ms Parham submits that the Magistrate erred in arriving at the sentence for the drug offences by placing too much weight on Mr Bui’s drug related criminal history.
Lastly, Ms Parham argues that the Magistrate erred by failing to give sufficient weight to the circumstances of each offence and to the absence of prior offending other than for the drug offences.
Consideration of submissions on appeal
The first issue is whether it was open to the Magistrate to impose a sentence of imprisonment. It is clear that the Magistrate had the power to impose a sentence of imprisonment. Section 11 of the Sentencing Act provides:
11—Imprisonment not to be imposed except in certain circumstances
(1)A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i) the defendant has shown a tendency to violence towards other persons; or
(ii) the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
Mr Bui had been convicted in 1998 for the offence of possessing a controlled substance for sale. He was sentenced to imprisonment for three years one month with a non-parole period fixed at 20 months, suspended upon Mr Bui entering into a bond that included a condition that he be of good behaviour for a period of two years. Accordingly, s 11(1)(a)(iii) of the Sentencing Act was satisfied.
I reject the submission that it was necessary for the Magistrate to spell out in his sentencing remarks whether s 11 was satisfied and how, and whether he had considered every other sentencing option that was available. It is clear that the Magistrate considered imprisonment to be the appropriate sentence. The failure to spell out his approach to s 11(1) is not of itself, an error.
The next issue is whether the Magistrate was correct to impose a sentence of imprisonment. I consider that the offence of indecent filming warranted imprisonment.
In the light of Mr Bui’s antecedent drug offending it was open to the Magistrate to impose a sentence of imprisonment for the drug offences.
I deal with the other offences below.
The question remains whether the sentence of imprisonment imposed by the Magistrate was manifestly excessive.
The Magistrate first dealt with the offences of possession of a dangerous article and accepting ammunition as a gift when not licensed to possess a firearm that fires that type of ammunition. The Magistrate accepted that Mr Bui received the ammunition from a friend and that he did not appreciate that being in possession of a single round of ammunition was unlawful. The Magistrate also accepted that Mr Bui did not believe the slingshot, in particular, to be a prescribed dangerous article because Mr Bui had come across such items in markets.
The Magistrate emphasised the need to protect the public from ‘people arming themselves in this way and carrying ammunition as well’: sentencing remarks [3]. The Magistrate placed emphasised both general and personal deterrence.
There is no doubt that the protection of the public is a relevant consideration when sentencing for offences of this nature.
However, I consider that the sentence imposed by the Magistrate for these offences was excessive. It was not appropriate for the Magistrate to impose a sentence of imprisonment in the circumstances.
These were Mr Bui’s first offences of this nature. He was carrying a single round of ammunition. There was no evidence that he was capable of firing it. Mr Bui said that he intended to make a necklace using the ammunition. I also consider the possession of a slingshot in the circumstances to be in the lower range of seriousness for the offence of possessing a dangerous article.
It is appropriate to set aside the sentences of imprisonment imposed by the Magistrate for these two offences and substitute a fine of $250 for each offence.
I turn now to the Magistrate’s consideration of the drug offences.
The Magistrate accepted that the offences were in the lower range of objective seriousness: sentencing remarks [4]. I agree.
The Magistrate took into account Mr Bui’s previous record of drug offending. It is significant that Mr Bui had previously been sentenced in 1998 to imprisonment for a substantial period of time for the offence of possessing a controlled substance for sale, notwithstanding that it was suspended.
Mr Bui was convicted in 2009 of possessing equipment to administer cannabis and unlawful possession, and was fined $400. In 2010, Mr Bui was convicted of possessing equipment to use with a controlled drug and fined $180. Mr Bui was convicted in 2012 for possession of a controlled substance and fined $300.
In the light of Mr Bui’s history of drug offending, it cannot be said that the sentence of 14 days’ imprisonment is excessive.
Finally, I turn to the offence of indecent filming.
The Magistrate correctly characterised this offending as serious. He noted that it was ‘a gross invasion of somebody’s privacy’ and ‘no doubt dignity’: [9]. As mentioned above, I consider that this offence warranted a sentence of imprisonment despite it being Mr Bui’s first offence of this kind. It matters not that the material was for Mr Bui’s own use and gratification. The fact that the material was not published is irrelevant. All that that establishes is that it was not a more serious offence.
I do not consider that the sentence of 30 days’ imprisonment was excessive.
The Magistrate indicated at an early stage that he would probably impose a sentence of imprisonment for 21 days irrespective of whether Mr Bui pleaded guilty to one count or three counts of indecent filming, but that the greater sentence of 30 days’ imprisonment was imposed. This discrepancy was not drawn to the Magistrate’s attention by counsel at the appropriate time. In any event, I do not consider the Magistrate was bound by the indication that he gave. It cannot be said the indication of 21 days’ imprisonment induced the plea of guilty. Mr Bui had already indicated that he would plead guilty to one count.
Conclusion and orders
For the those reasons, I am persuaded that there was an error made by the Magistrate in imposing a sentence of imprisonment in relation to the offences of possessing a dangerous article and accepting ammunition as a gift when not the holder of a licence authorising possession of a firearm to fire that type of ammunition. Accordingly, I make the following orders:
1.That the appeal against sentence be allowed.
2.That the sentence imposed by the Magistrates Court of South Australia on 3 February 2012 for the offences of possessing a dangerous article and accepting ammunition as a gift be set aside.
3.That the following sentences be substituted:
3.1. For the offence of possessing a dangerous article, Mr Bui be fined $250.
3.2 For the offence of accepting ammunition as a gift when not authorised to possess a firearm to fire that type of ammunition, Mr Bui be fined $250.
4.That otherwise the appeal against sentence be dismissed.
This results in a total head sentence of 44 days’ imprisonment commencing on 3 February 2012, and fines to the amount of $500.