Naoumidis v Robens
[2018] ACTSC 365
•13 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Naoumidis v Robens |
Citation: | [2018] ACTSC 365 |
Hearing Date: | 13 August 2018 |
DecisionDate: | 13 August 2018 |
Before: | Burns J |
Decision: | See [30] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – whether Magistrate fell into error by failing to provide reasons for decision not to sentence with a non-conviction order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 17 Drugs of Dependence Act 1989 (ACT) s 169(1) |
Parties: | Christopher Naoumidis (Appellant) Paul Robens (Respondent) |
Representation: | Counsel Mr T Sharman (Appellant) Ms R Khazma (Respondent) |
| Solicitors Sharman Robertson (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 29 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Theakston Date of Decision: 15 May 2018 Case Title: Robens v Naoumidis Court File Number: CC2018/1839; CC2018/4197 |
BURNS J:
On 15 May 2018 the appellant appeared before the Magistrate, charged with a drink‑driving offence (CC2018/1839) and also an offence of contravening s 169(1) of the Drugs of Dependence Act 1989 (ACT) (CC2018/4197), in that on 22 October 2017 he possessed a drug of dependence, namely methylamphetamine. As I have stated, on 15 May 2018 the appellant, who was represented by Mr Sharman, entered a plea of guilty to the possession charge.
A Statement of Facts was put before the Magistrate. It does not appear that there was any objection taken to the contents of the Statement of Facts. Put briefly, the facts were that the appellant was driving a motor vehicle at about 2.50 am on 22 October 2017 at Mitchell in the Australian Capital Territory. He was stopped by police and subjected to a breath screening test. That, apparently, was positive and he then provided a sample of breath sufficient for analysis, which showed a reading of 0.094 grams of alcohol per 210 litres of breath, which was a level three reading.
The appellant was asked to empty out his pockets and amongst his possessions at that time police located 0.45 grams of methylamphetamine in, as I understand it, a small plastic bag. That, of course, was the basis of the charge of possession of a prohibited substance.
Before the Magistrate, Mr Sharman made a plea in mitigation with respect to both offences, although it is clear that the majority of the plea was directed towards the drink‑driving offence. With regard to the charge of possession of a drug of dependence Mr Sharman said, and I quote:
It had been the case that he’d been out with friends. He describes himself as not a person who uses drugs. He’d been out with some people. He’d been offered the substance that was found in his possession. He retained it, in what I might describe as a contemplative possession, that is, he wasn’t sure whether or not he would try it or whether he’d discard it at some later time. Of course, he’s very happy that it was, in the end, retained by police and he didn’t use it because what he believed he got was not actually what the substance was. He believed that he was receiving a small amount of cocaine, which, of course, is a listed substance but, of course, might be seen in a very different category as methylamphetamine.
It causes him some distress, if your Honour pleases, that not only of course was he found in possession of an illicit substance, but that substance was a substance that he knows can cause such harm, not only to himself, but to other members of the community. I should indicate that what goes in his favour in respect of that is the circumstances, and you will note that he was given the option of emptying his pockets. He did so, consistent with the candour that he approached the whole process and consistent with those references that are before you.
I would be asking your Honour to view that offence as being, obviously, different from the drink driving matter. It’s a matter which quite obviously, you would appreciate, has the potential to impact not only his work, but his future, in so many ways. I would ask your Honour to take into account the fact that he has no prior convictions, the fact that he’s a person of otherwise good character, and the circumstances and nature of the offence itself. I would ask you, as distinct from the other matter, to consider dealing with that matter by way of a good behaviour order under section 17.
Clearly, the submission that was made to the Magistrate was that the Magistrate should consider exercising his discretion under s 17, and I take that of course to be a reference to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (‘Crimes (Sentencing) Act’), and without recording a conviction for the offence of possession of a drug of dependence, impose a good behaviour order under s 13 of that Act. The Magistrate imposed convictions with respect to both the drink‑driving offence and also the offence of possession of a drug of dependence.
He gave reasons with respect to the drink‑driving offence, but I think that it is fair to say that he did not, in any way, address the submission that had been made to him that he should exercise his discretion not to impose a conviction with respect to the charge of possession of a drug of dependence. All his Honour said in relation to that charge was, and again I quote:
In relation to the possession charge, which is charge 4197 of 2018, you will be convicted and I impose a good behaviour order for six months with the core conditions only.
The appellant has appealed, from the orders made by the Magistrate, with respect to the charge of possession of a drug of dependence. The ground of appeal is that the Magistrate fell into error in failing to provide reasons for declining to proceed under s 17 of the Crimes (Sentencing) Act.
The respondent, in submissions before me, has said that no error has been demonstrated by the Magistrate because it is clear that the Magistrate took into account all of the relevant circumstances as required by s 17 of the Crimes (Sentencing) Act and simply determined not to exercise his discretion to not record a conviction with respect to that charge. I am unable to accept that submission. In my opinion it is incumbent upon any court to deal with any submission which is made to it in the course of proceedings which may impact upon the orders which the court may make in relation to those proceedings.
Sometimes that will be a submission relating to a question of liability. If the court does not appropriately address that question it will usually be the case that the court has fallen into error in ultimately determining the question of liability without having determined an issue which was raised by the parties. The same, in my opinion, should be accepted to be the case with respect to sentencing, that where a submission is made in the course of sentencing submissions which has the capacity to impact upon the nature of any penalty to be imposed the court has an obligation to deal with that submission.
I accept that in a busy Magistrates Court it would be unnecessary for a Magistrate to give lengthy or elaborate reasons for determining not to exercise the discretion under s 17 of the Crimes (Sentencing) Act. It is, however, incumbent upon the Magistrate to acknowledge in his or her reasons that they have given consideration to the submission and that there is a reason why the submission is not accepted. As I have said, those reasons need not be lengthy or elaborate.
11. In that regard, I accept that the Magistrate fell into error in not giving reasons for not accepting the submission that the charge of possession of a drug of dependence was a charge which the Magistrate could appropriately dispose of without the recording of a conviction. However, that then raises the issue as to how the appeal ought to proceed. The appeal has proceeded in a somewhat unusual way, in my experience, in that the appellant has been permitted to put material before the court which, if the appeal were allowed, he would propose placing before the court on any re-sentencing exercise. The reason the appellant has been permitted to proceed in this way was in order to convince me that I should set aside the orders made by the Magistrate and exercise the sentencing discretion afresh.
I raised with Mr Sharman the proposition that there would be no utility in allowing the appeal if the case was not one which would otherwise have justified the exercise of the discretion under s 17. Mr Sharman submitted that the proper approach to take was a two-stage approach whereby it was determined whether the Magistrate had fallen into error and, if so, the court should then uphold the appeal and exercise its discretion afresh in re‑sentencing. Mr Sharman submitted that at that point in time he would be entitled to call further evidence in order to attempt to convince me that I should exercise my discretion under s 17 not to record a conviction.
13. In my opinion a court, confronted with an appeal such as this, is entitled to look at the material which was before the Magistrate and to determine that even if there was an error made by the Magistrate that no other sentence was appropriate. In those circumstances the court is entitled to dismiss the appeal. The way in which the matter has proceeded today was, in my opinion, appropriate because it enabled me to determine whether there was any utility in upholding the appeal and re-sentencing the appellant.
14. I should make it clear that the material which I received today was placed before me not as fresh or further evidence in the hearing of the appeal, but purely for the restricted purpose of demonstrating what evidence would be placed before me if I was called upon to re-sentence the appellant. This was relevant to determining whether there was any utility in upholding the appeal. The material which was placed before me by Mr Sharman consists of a letter from the sister of the appellant and also oral evidence which was given by the appellant himself.
15. The appellant’s sister speaks of growing up with the appellant as part of a close and respectful family. She speaks of the shock experienced by the family as a consequence of the appellant’s conviction for the offence of possession of a drug of dependence. She goes on to say that he has never previously been involved with drugs and does not have a criminal record. I will interpolate at this point to note that whilst it is true that the appellant does not have a prior criminal record – that is, prior to May this year, 2018, when he appeared before the Magistrate.
16. The appellant himself, in his evidence, admitted that he has, in the past, used cannabis and cocaine. Whilst it is clear that the appellant has not advised his sister of that matter I do not discard, entirely, the statements made by his sister as a consequence of that failure on the part of the appellant. She speaks of his remorse for his actions and him having undertaken a drug and alcohol awareness course as a first step in demonstrating his commitment to move past this offence. She also speaks of these offences as being out of character.
17. In his evidence the appellant stated that he is a project manager who is now employed in Sydney. At the time of this offence he was employed in Canberra. In future he anticipates working on government building sites for which he may need a security clearance. He acknowledges that the conviction for the offence of possession of a drug of dependence has not, to this point, had any effect upon him. He also states that a conviction for this offence may affect his ability to obtain a gun license, and that is in circumstances where he has previously enjoyed recreational shooting with his father, and it may also impact upon his travel aspirations and, in particular, his aspiration to travel to the United States of America to work there.
18. I should note that nothing in the character reference letter provided by the appellant’s sister differs significantly from the material which was put before the Magistrate. I should also note that there has been no evidence from his employer that any conviction for the offence of possession of a drug of dependence is likely to affect his work in the future and his ability to maintain employment in the field in which he currently works, or indeed even for the same employer. The appellant himself accepted there was a degree of speculation involved in his evidence about his concerns in that regard.
19. There is, similarly, nothing before me, of a concrete nature, to suggest that a conviction for the offence of possession of a drug of dependence is likely to permanently affect his ability to obtain a gun license or to permanently affect his travel aspirations. I accept that the appellant has concerns about those issues, but the material before me does not establish that those concerns are well‑founded in the sense that a conviction is likely to have a permanent impact upon his ability to engage in those activities.
20. As I indicated in argument with Mr Sharman, it must be accepted that the expected outcome of proof of criminal offending is the recording of a conviction. I struggle to see how the present appellant differs significantly from any other offender who may commit this type of offence, except to the extent that he has had benefits and opportunities that many other people convicted of this type of offence have not had. He has not been exposed to drug abuse at an early age. He has been brought up, apparently, in a loving and close family environment.
21. Nevertheless, it is clear that s 17 of the Crimes (Sentencing) Act does provide a discretion to a court, in sentencing an offender for this type of offence, not to record a conviction. The section relevantly provides that in deciding whether to make a non‑conviction order for the offender the court must consider the following: the offender’s character, antecedence, age, health and mental condition, the seriousness of the offence, any extenuating circumstances in which the offence was committed and also anything else the court considers relevant.
22. Whilst the section does not require the court to be satisfied that there are exceptional circumstances or special circumstances which are demonstrated before the court can exercise its discretion under s 17 it is, nevertheless, the case that the disposition of a matter, without the recording of a conviction, must be considered itself exceptional because, as I have said, the expectation of the proof of criminal offending should ordinarily be the recording of a conviction.
It may be accepted that the appellant, at the time that he came before the Magistrate, and indeed at the present time, had no prior convictions. That is convictions prior to the time that he came before the Magistrates Court. There was nothing in his health or mental condition which was particularly relevant to sentencing him. He was, at that time, 26 years of age, in fact nearly 27 years old. Mr Sharman, on behalf of the appellant, has emphasised his youth. It may well be that he is relatively youthful, but in my opinion he does not have available to him the excuse of having acted, as he did, because of extreme youth, such as might be the case with somebody who has only just turned 18 years old or is a very young adult. The appellant was a mature man at the time that he committed this offence.
Mr Sharman submitted that the offence was not at the more serious end of the scale of offences of this nature. I note that the offence was one which carried a maximum penalty of two years’ imprisonment, 50 penalty units or both. It cannot be described in itself as being a minor or non‑serious offence. However, I do accept the proposition that circumstances of the offence committed by the appellant are such as to place it towards the bottom of the range of offences of possession of a drug of dependence.
25. It cannot be said, in my opinion, that there were any particular extenuating circumstances in which the offence was committed. The appellant, although intoxicated, apparently took possession of the substance in the knowledge that it was a drug of dependence, albeit that he thought that it was cocaine. He retained possession whilst he contemplated whether he would use it or not use it.
26. In an appropriate case a court may consider whether there is likely to be a disproportionate effect upon an offender by the imposition of a conviction. That is a matter which would be governed by s 17(4) of the Crimes (Sentencing) Act as being something else or another matter which the court considers relevant, so that if the imposition of a conviction is likely to have a particular impact upon an individual offender, the court may take that into account in determining whether to exercise its discretion not to impose a conviction.
27. The material which was put before the Magistrate in that regard was particularly thin. Some further material has been put before me today, as I have said, by way of demonstration of further material that could have been put at the time of sentencing or, indeed, could be put if this court was to re-sentence the appellant. I am not satisfied that any other sentencing option would be appropriate, bearing in mind the circumstances of the offence and those other matters which are referred to in s 17(3) and (4) of the Crimes (Sentencing) Act.
28. As I have already indicated, to the extent that the appellant seeks to raise an impact or potential impact upon him of a conviction with regard to this offence, and in particular with regard to his ability to undertake his employment and to undertake other activities, the material before me is not supported and appears mainly to be based upon either concerns on the part of the appellant or speculation on his part.
29. In conclusion, I simply state that in my opinion whilst there may have been an error demonstrated on the part of the Magistrate by failing to give reasons for declining to exercise a discretion under s 17 not to record a conviction, the appeal should not be upheld on the basis that there would be no basis to impose a sentence without a conviction if the appellant was to be re-sentenced.
30. The appeal will be dismissed. The conviction and orders made by the Magistrate will be confirmed, but the good behaviour order will have to commence from today.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 13 February 2019 |
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