R v Behroz Khajehnoori - [2005] ACTSC 130

R v BEHROZ KHAJEHNOORI [2005] ACTSC 130 (10 November 2005)

EX TEMPORE JUDGMENT

No. SCC 249 of 2004

Judge: Madgwick J
Supreme Court of the ACT

Date: 10 November 2005

IN THE SUPREME COURT OF THE       )
  )          No. SCC 249 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:THE QUEEN
Prosecution

AND:BEHROZ KHAJEHNOORI
Accused

ORDER

Judge:  Madgwick J
Date:  10 November 2005
Place:  Canberra

THE COURT ORDERS THAT:

I defer passing sentence conditionally upon the prisoner’s entering into a recognizance in the sum of $500:
(a)to be of good behaviour for a period of two years; and
(b)to appear for sentencing if called upon, at any time, in relation to any breach of the recognizance.

The prisoner has pleaded guilty to a charge of possessing the prohibited drug, methamphetamine under the Drugs of Dependence Act 1989 (ACT) s 171(1). He had a single capsule which contained 0.015 of a gram of that drug. That is about three percent of the quantity that would turn simple possession into deemed possession, absent proof to the contrary, for the purposes of supply per Schedule 1 Part 1.2 of the Criminal Code Regulation 2005 (ACT). The Crown concedes, rightly, that the amount of the drug is very small indeed.
At the time the prisoner was under a recognizance imposing on him a special obligation to be of good behaviour. But the nature of this charge to which that bond was imposed was quite different from the present. In the circumstances, if that were all, I would think the submission of his counsel that the case calls for a small fine in light of his plea of guilty, however belated, would be correct.
The matter is complicated by the prisoner having been convicted in July of this year and fined a substantial amount of money for the possession of another drug, the offence having been committed on 4 March 2005 while he was awaiting trial for this matter and while he was on bail for it. To my mind those facts raise an issue of the Court needing to do more to try to secure the prisoner’s rehabilitation. He is a young, well educated man, an architect in training who no doubt clearly understands his position. But I will make it abundantly clear.
I intend to defer passing sentence, conditionally upon his entering into recognizance himself in the sum of $500 to be of good behaviour for a period of two years and to appear for sentence, if called upon to do so, at any time for breach of the recognizance. The effect of that is to put the prisoner under a special obligation to obey the criminal law, not only in relation to drugs but of course especially in relation to drugs.
If he should be so unwise as to offend again within the period of recognizance then two things will happen. The first would be that he would be re-sentenced in relation to the present charge. The second is that any new…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] ACTSC 130
Decision Date

CaseChat Overview and Summary

Behroz Khajehnoori was charged with possession of a prohibited drug, methamphetamine, under the Drugs of Dependence Act 1989 (ACT) s 171(1). The quantity of the drug found was very small, approximately three percent of the amount that would constitute deemed possession for the purposes of supply. Khajehnoori had pleaded guilty to the charge. Notably, he was under a recognizance at the time of the offence, which was imposed for a different charge. Additionally, he had been convicted earlier in the year for possessing another drug while on bail for the present matter.

The court had to decide the appropriate sentence for Khajehnoori considering the small quantity of the drug, his plea of guilty, and his recent history of drug-related offences. Given his education and profession as an architect in training, the court considered the need for rehabilitation over punitive measures. The court also took into account the potential for a harsher sentence if Khajehnoori were to reoffend within the recognizance period. The Crown conceded that the amount of the drug was very small, but the court was concerned about his repeated drug-related offences.

The court, after considering the factors mentioned above, decided to defer sentencing and instead required Khajehnoori to enter into a recognizance in the sum of $500, to be of good behaviour for two years, and to appear for sentencing if called upon for any breach of the recognizance. The court made it clear that any further offence would likely result in a custodial sentence. The court emphasized that this was a chance for Khajehnoori to clear his slate and avoid further punishment.

The court deferred passing sentence conditionally upon Khajehnoori entering into a recognizance in the sum of $500, to be of good behaviour for two years, and to appear for sentence if called upon for any breach of the recognizance. The court certified that the preceding seven numbered paragraphs were a true copy of the Reasons for Judgment.

Orders