Nima Akbari Yazdi v Lachlan Chancellor

[2011] ACTSC 171

NIMA AKBARI YAZDI v LACHLAN CHANCELLOR
[2011] ACTSC 171 (18 October 2011)

APPEAL – appeal from the Magistrates Court – error of fact relied upon in sentencing proceedings – appeal upheld

Criminal Code 2002 (ACT), s 603 (7)
Williams v The Queen (1978) 140 CLR 591

REASONS FOR DECISION

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 82 of 2011

Judge:             Burns J
Supreme Court of the ACT

Date:              18 October 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 82 of 2011
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:                   NIMA AKBARI YAZDI

Appellant

AND:  LACHLAN CHANCELLOR

Respondent

ORDER

Judge:  Burns J
Date:  18 October 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.

1. The sentence of six months imprisonment is confirmed.

1. The sentence is backdated to 26 August 2011 to take into account the time already served by the appellant.

1. The balance of the sentence is to be served by way of periodic detention.

1. The good behaviour imposed by the learned Magistrate on 26 August 2011 is reimposed and effective immediately.

1. By a Notice of Appeal dated 29 August 2011, the appellant appealed against the sentence imposed by Magistrate Walker on 26 August 2011 on a charge contrary to s 603(7) of the Criminal Code 2002 (ACT) alleging that on 25 November 2010 the appellant trafficked in a controlled drug other than cannabis namely, amphetamine.
2. On 26 August 2011 the learned Magistrate convicted the appellant of the offence and sentenced him to 15 months imprisonment, suspended after six months onto his entry into a good behaviour order for a period of two years.
3. The appeal came on for hearing before me on 8 September 2011.  After hearing Mr Gill of counsel for the appellant and Mr Doig for the respondent, I allowed the appeal.  The conviction imposed by the learned Magistrate was confirmed and the appellant was re-sentenced to six months imprisonment, backdated to 26 August 2011, to be served by way of periodic detention.  In addition, a good behaviour order in the same terms as that imposed by the learned Magistrate was reimposed and made effective immediately.  At the time that I announced my decision I indicated that I would later publish reasons.  These are those reasons.
4. A statement of facts was place before the learned Magistrate.  That statement of facts revealed that on 25 November 2010 Police executed a search warrant on premises at 13 Haystack Crescent Palmerston in the Australian Capital Territory.  During the course of that search some 71 pills were found in two locations within the premises.  Those pills were believed to contain amphetamines.  The appellant was not present in the premises at the time that the search warrant was executed.
5. At about 8:00 pm that date the appellant knocked on the door of 13 Haystack Crescent Palmerston.  At that time, Police were still in the process of executing the search warrant.  The appellant was informed that a search warrant was currently being executed at the residence and that he was now subject to the search warrant as he was within the boundaries of the residence.  The appellant was searched and was found to be in possession of approximately 200 tablets contained within two plastic bags.  A further 50 tablets were located in a motor vehicle parked at the premises.  I understand that the appellant was in possession of the approximately 250 tablets with a view to supplying them to a co-offender for the purpose of sale at an upcoming musical event.
6. Sentencing of the appellant was delayed by reason of the unavailability of drug analysis certificates in relation to the tablets.  Her Honour, quite rightly, was of the view that the quantity of amphetamines within the tablets was information relevant to sentencing the appellant.  All that the prosecution could put before the learned Magistrate was an interim certificate indicating that a presumptive test had determined that the tablets contained amphetamine.  The sentence hearing was adjourned to allow the prosecution an opportunity to place this evidence before the learned Magistrate.  The court was subsequently advised that a final certificate, setting out the actual weight of the amphetamine contained in the tablets, would not be available for a further 10 months.  It is not surprising that, in the light of the inability of the prosecution to adduce this evidence in a timely manner, the learned Magistrate proceeded to sentence the appellant.
7. Where the prosecution in a case concerning the possession or supply of drugs declines to put before the sentencing court evidence of the quantity of drugs involved in the offence, the court should proceed to sentence on the basis that the quantity of the drug in question was more than a trace amount, but not more than a minimal amount.  By the term “minimal amount” I mean an amount sufficient to avoid the problems identified in Williams v The Queen (1978) 140 CLR 591.
8. During the course of sentencing submissions it was made clear to the learned Magistrate that the basis of the plea of guilty was that the appellant was going to provide the pills to another person in contemplation that they would be on-sold at an upcoming music event in Canberra.  It was never conceded by counsel who then appeared for the appellant that the appellant had been in possession of more than the trafficable quantity of amphetamine.  Indeed, immediately before the learned Magistrate indicated her willingness to proceed to sentence in the matter, counsel for the appellant said:

“Your Honour had some concerns quite rightly as to the lack of a certificate and that’s now been exposed.  Your Honour was urged by both parties to proceed.  What I indicated to your Honour on the last occasion was that any inference your Honour might draw it must be the most favourable to Mr Yazdi.

But I also conceded that perhaps his level of culpability is born out by the number of pills he had and on his acknowledgement and the pre-sentence report that he expected that they would be on-sold to other persons”.

9. The prosecutor made no submissions to the learned Magistrate that the appellant had been in possession of more than the trafficable quantity of amphetamine.  In the circumstances where the tablets had never been analysed to determine the precise concentration of amphetamine, the prosecutor could not have been in a position to make such a submission.
10. In the course of her sentencing remarks, the learned Magistrate said:

“This is an interesting matter in one sense in that I have been invited by both of the parties to sentence in relation to the offences in the absence of any certification of purity of the number of pills or tablets, which were found on Mr Yazdi.  I note that they were significantly in excess of 200 tablets and I take by the plea of guilty and the acceptance of the plea of guilty that it is accepted that a trafficable quantity of more than 2 grams was present in those tablets which were recovered”.

11. The learned Magistrate was in error in forming the view that the appellant’s plea of guilty evidenced acceptance that he had been in possession of more than the trafficable quantity of amphetamine.  The appellant’s plea was based on his acknowledgement that he had intended on giving the tablets to a co-offender for the purpose of on-sale.  It was therefore clear that her Honour had proceeded to sentence based upon a misunderstanding of the facts in the case.  As such the appeal had to be upheld.
12. I considered that a sentence of six months imprisonment was appropriate, bearing in mind the likely wide distribution of the substance as indicated by the number of tablets.  However, as it was appropriate to proceed on the basis that each tablet contained a minimal amount of amphetamine, and in the light of the appellant’s lack of any criminal history, his age and antecedents, I was not satisfied that an immediate term of imprisonment was required.  For that reason I confirmed the sentence of six months imprisonment, back dating the sentence to 26 August 2011 to take into account time already served by the appellant, but ordered the balance of the sentence to be served by way of periodic detention.  I also ordered that the good behaviour order imposed by the learned magistrate on 26 August 2011 be reimposed and effective immediately. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:

Date:    18 October 2011

Counsel for the appellant:  Mr S Gill
Solicitor for the appellant:  Rachel Bird & Co
Counsel for the respondent:  Mr A Doig
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  8 September 2011
Date of judgment:  18 October 2011