Tien Pham v David Fleming
[2013] ACTSC 25
•4 February 2013
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 should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
Counsel for the appellant has taken me to the sentencing comments of the learned sentencing Magistrate. It is true that those sentencing comments are spartan, but they appear to cover most of the matters that his Honour needed to deal with.
His Honour said:
Mr Pham, you are charged with an offence of possession of a drug of dependence and you come before the court with two references from friends of yours who indicate that you are a reliable and upstanding member of the community who they respect and who find it uncharacteristic of you to have been charged with this offence. It has been suggested that I should deal very leniently with the case because there was not a great deal of the drug found in your possession and also you had not purchased it and were really just experimenting with it. However, the use of drugs such as the one found in your possession is one [sic] that the courts are required to send a message to the community that offenders will be dealt with severely and firmly, and I propose to do that.
This is a case which is an offence which, unfortunately, is all too prevalent in our community, and it is important for the court to deal firmly with offenders. I take into account your early plea of guilty. I take into [account] potential for this offence after a conviction to have ramifications for you in the future in a career in IT, and I also take into account the family disturbance that may occur when members of your family who do not know that you are before the court find out. However, it is an offence which is, as I have said, a prevalent offence, and one which the courts must deal with firmly.
(Transcript 5/4/12, pp. 6-7)
His Honour then proceeded to impose a conviction and a fine of $500.
Mr Sharman on behalf of the appellant submits that the learned Magistrate, in making broad statements about the category of offences into which the offence then before him fell, failed to take into account the particular circumstances of that offence.
As I understand it, he suggests that the learned Magistrate put this offence into a special class of offences not amenable to the application of section 17. In my opinion, there is no merit to this submission.
In submissions to his Honour, the prosecutor stated that the offence of possession of drugs of dependence, such as cocaine, is prevalent in this community. Counsel then representing the appellant did not demur from that proposition, nor does Mr Sharman demur from that proposition in the proceedings now before me.
As such, the learned Magistrate was entitled to take into account the fact that offences of this nature are prevalent in determining the extent to which general deterrence should inform the particular sentence to be imposed.
It is clear that his Honour took into account the particular circumstances of the offence which was then before him. His Honour made a special reference to the fact that only a small amount of the drug was found in the appellant’s possession, and also that he had not purchased it and was really just experimenting with it.
I should note also that his Honour took into account the personal circumstances - that is, the subjective circumstances - of the appellant. His Honour makes reference to the fact that a conviction may well have ramifications for the appellant with respect to his prospective career, and also in terms of his personal life.
It cannot be said that his Honour did not take into account a relevant consideration or took into account an irrelevant consideration in the sentencing process. The appellant’s real complaint, as I said in respect of the matter of Kelly v Johnston, is that he considers the sentence imposed to be excessive.
However, as Mr Sharman has properly conceded, it cannot be suggested that the sentence imposed by the learned Magistrate was excessive. I’m not satisfied that the learned Magistrate made any appealable error with respect to the sentence that he imposed upon the appellant. Nor am I satisfied that the sentence imposed was manifestly excessive.
Accordingly, the appeal will be dismissed, and the orders made by the learned Magistrate will be confirmed.
The orders of the learned Magistrate will be varied simply to allow a further period of two months to pay from today.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 25 February 2013
Counsel for the appellant: Mr T Sharman
Solicitor for the appellant: Tim Sharman
Counsel for the respondent: Mr A Williamson
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 4 February 2013
Date of judgment: 4 February 2013
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