McKinnon v Fleming

[2011] ACTSC 186

PHOEBI ANN MCKINNON v DAVID JOHN FLEMING                 
[2011] ACTSC 186 (10 November 2011)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 31 of 2011

Judge:             Burns J
Supreme Court of the ACT

Date:              10 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 31 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PHOEBI ANN MCKINNON

Appellant

AND:             DAVID JOHN FLEMING
  Respondent

ORDER

Judge:  Burns J
Date:  10 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal will be upheld.  With respect to the charge of trafficking in an unlawful drug, CC 9687 of 2010, the conviction and penalty are set aside and a verdict of not guilty will be entered.

1. With respect to the remaining charge of possession of property reasonably suspected of being stolen or otherwise unlawfully obtained, CC 6984 of 2010, the conviction is confirmed but the penalty is set aside and in lieu, there will be a good behaviour order for a period of nine months.

1. The costs in relation to the charge that has been dismissed are to be as agreed or assessed in favour of the applicant.  That is in both the Lower Court and on the appeal in this Court.

1. As indicated in argument with counsel, I am satisfied that the sentence imposed by the learned Magistrate with respect to the charge of unlawful possession cannot stand.  I am satisfied that it was infected with error in the sense that his Honour gave no reasons for imposing a sentence of two months imprisonment. 

1. A sentence of imprisonment is always a sentence of last resort, and I understand that, before his Honour at that time, there was a charge which he had found proven, after a contested hearing, of trafficking in an unlawful drug, and the focus of the sentence proceedings before the learned Magistrate was on that charge.  However, that does not relieve his Honour of the obligation to turn his mind independently to those factors which are relevant to sentencing with respect to the charge of unlawful possession. 

1. The failure of his Honour to give any reasons for the imposition of the term of imprisonment reveals error in my view.  In addition to which, in the circumstances which now exist whereby the Crown no longer presses the charge of trafficking, the sentence imposed by his Honour was manifestly excessive.  As I have said, the appeal must be upheld with respect to the penalty imposed by the learned Magistrate with respect to that charge.

1. Turning to the main charge which was before the learned Magistrate, the charge of trafficking, the Crown has, and I think, correctly, conceded that the appeal must be upheld.  The Crown does not oppose the setting aside of the conviction and the penalty and the entering of a verdict of not guilty. 

1. Bearing in mind the sum of money which was involved in the charge of unlawful possession and the circumstances in which the money was found to be in the possession of the accused, including the fact that she was involved in what she believed at that time to be a process of transferring drugs from one person to another, and also transferring that money as part of that process, it would not be appropriate in my view to deal with the re-sentencing of the appellant for the charge of unlawful possession by the imposition of a non-conviction order. 

1. However, I do note that she has spent some 13 days in custody and that in itself is a very significant penalty.  The appellant should consider herself to be very lucky indeed that the deficiency in the preparation of the evidence by the Police for the hearing before the learned Magistrate resulted in a lack of evidence being put before the Court as to an analysis of the substance which was located in the car the appellant was driving.  One hopes that she has learned something from this whole process.

1. Would you stand please, Ms McKinnon?  The appeal will be upheld.  With respect to the charge of trafficking in an unlawful drug, CC 9687 of 2010, the conviction and penalty are set aside and a verdict of not guilty will be entered. 

1. With respect to the remaining charge of possession of property reasonably suspected of being stolen or otherwise unlawfully obtained, the conviction is confirmed but the penalty is set aside and in lieu, there will be a good behaviour order requiring you to sign an undertaking to be of good behaviour for a period of nine months.  I will not impose any other conditions with respect to that order at this time.

1. The costs in relation to the charge that has been dismissed are to be as agreed or assessed.  That is in both the Lower Court and on the appeal in this Court.

   I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:   16 November 2011

Counsel for the appellant:  Mr K Archer
Solicitor for the appellant:  Kamy Saeedi Lawyers
Counsel for the respondent:  Mr J Hiscox
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  10 November 2011
Date of judgment:  10 November 2011