Tien Pham v David Fleming - [2013] ACTSC 25

TIEN PHAM v DAVID FLEMING
[2013] ACTSC 25 (4 February 2013)

APPEAL AND NEW TRIAL – Appeal from ACT Magistrates Court – Whether sentencing Magistrate failed to take into account the particular circumstances of the offence – Whether failure to take into account a relevant consideration or taking into account an irrelevant consideration – Magistrate made no appealable error – No manifest excess – Appeal dismissed

Drugs of Dependence Act 1989 (ACT), s 169
Crimes (Sentencing) Act 2005 (ACT), s 17

Kelly v Johnston [2012] ACTSC 178

House v The King (1936) 55 CLR 499

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 32 of 2012

Judge: Burns J
Supreme Court of the ACT

Date: 4 February 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 32 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TIEN PHAM
Appellant

AND: DAVID FLEMING
Respondent

ORDER

Judge:  Burns J
Date:  4 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

The orders of the sentencing Magistrate are confirmed except that the appellant is given a further two months from 4 February 2013 to pay the fine.

On 5 April last year the sentencing Magistrate in this matter made an order convicting the appellant of an offence contrary to section 169(1) of the Drugs of Dependence Act 1989 (ACT), and imposed a fine of $500.

The specific offence then before the learned Magistrate alleged that in the Australian Capital Territory on 29 September 2011 the appellant possessed a drug of dependence, namely cocaine.

There is no doubt that the plea of guilty by the appellant which led to the sentence imposed by the learned Magistrate was an early plea. The appellant now appeals from the sentence imposed by the learned Magistrate.

Essentially, the appellant complains that a Non-Conviction Order pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT) should have been imposed rather than a conviction and fine. In the notice of appeal, the ground of appeal is expressed as, and I quote, “His Honour erred in placing excessive weight on general deterrence”.

As I said in the matter of Kelly v Johnston [2012] ACTSC 178, the principles relevant to an appeal of this nature are well established and not in dispute. The legislature has provided that the Magistrates Court is the appropriate decision-making body for imposition of sentence with respect to this offence. I am not to interfere with the sentencing discretion of the magistrate unless error is found of the kind contemplated by the High Court in House v The King (1936) 55 CLR 499.

In that decision, Dixon, Evatt and McTiernan JJ said at 504, and again I quote:

[T]he judgment complained of, namely sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion…

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.

Continue reading Tien Pham v David Fleming

Details

AGLC: Tien Pham v David Fleming [2013] ACTSC 25
Case: [2013] ACTSC 25
Decision Date: 4 February 2013

CaseChat Overview and Summary

In the matter of Tien Pham v David Fleming, the appellant, Tien Pham, sought to appeal against his conviction and sentence imposed by the respondent, David Fleming, who was the sentencing Magistrate in the ACT Magistrates Court. The nature of the dispute was that Pham was convicted of assault occasioning actual bodily harm, and he was dissatisfied with the sentence imposed. He argued that the sentencing Magistrate had failed to take into account certain particular circumstances of the offence, or had taken into account irrelevant considerations.

The legal issues before the court were whether the sentencing Magistrate had failed to take into account a relevant consideration, or had taken into account an irrelevant consideration, and whether these constituted an appealable error or a manifest excess of jurisdiction. The court was required to consider whether the sentence imposed was unjust or inappropriate in the circumstances of the case.

The court found that the sentencing Magistrate had not made any appealable error in imposing the sentence. The Magistrate had considered all relevant factors and had taken into account the particular circumstances of the offence. The court found that the sentence imposed was just and appropriate in the circumstances of the case, and that there was no manifest excess of jurisdiction. The appeal was therefore dismissed, and the conviction and sentence imposed by the Magistrate was upheld. The appeal was dismissed with no orders for costs.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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