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:

1. 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. 

1. 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.

2. 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.

3. 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. 

4. 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. 

5. 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 charge would be regarded as severely aggravated by his throwing away a chance extended to him to escape punishment at all for this matter.  If he were to sustain a third conviction for possessing a drug it seems to be very likely that the sentencing magistrate or judge would feel obliged or inclined to treat him as a person who would not learn except by being gaoled and that gaol would likely follow. 

6. I speak directly to you, Mr Khajehnoori, you are in a very serious situation now.  This is a chance for you to get out of it and clear the slate.  If you use the brains that God clearly endowed you with, then you will not get into trouble. 

7. The prisoner is convicted.  I defer passing sentence conditionally upon his entering into a 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, at any time, in relation to any breach of the recognizance. 

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein Madgwick J.

   Associate:

   Date:    7 December 2005

Counsel for the prosecution:  Mr D Morters
Solicitor for the prosecution:  Director of Public Prosecutions (ACT)
Counsel for the accused:  Mr J Sabharwal
Solicitor for the accused:  S & T Lawyers
Date of hearing:  10 November 2005
Date of judgment:  10 November 2005