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Vinh v Christensen

Vinh v Christensen

Case [2017] ACTSC 389 19 December 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Vinh v Christensen
Citation:	[2017] ACTSC 389
Hearing Date:	24 October 2017
DecisionDate:	19 December 2017
Before:	Mossop J
Decision:	1. The appeal is dismissed. 2. The sentences are confirmed.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – prosecution for food hygiene offences – breaches of the Food Standards Code – whether magistrate erred by failing to consider current sentencing practices – whether magistrate departed from the standard level of fines for matters of a similar nature manifested error – whether magistrate failed to properly apply the principles of totality – whether sentences imposed were manifestly excessive – general deterrence – specific deterrence – appeal dismissed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 14, 33(1)(n), 33(1)(za), 35, 35(1)(b), 35A, 36, 37 Crimes (Sentence Administration) Act 2005 (ACT), ch 6A Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 Food Act 2001 (ACT), ss 19, 27(1) Legislation Act 2001 (ACT), s 133(2) Magistrates Court Act 1930 (ACT), ss 207(1)(a), 208(1)(e)(ii), 218 Australia New Zealand Food Standards Code
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Cajina v Narsey [2016] ACTSC 10 Cheung v The Queen [2001] HCA 67; 209 CLR 1 Delaney v The Queen [2013] NSWCCA 150 DPP (Vic) v Dalgleish [2017] HCA 41; 91 ALJR 1063 Elias v The Queen [2013] HCA 31; 248 CLR 483 EPA v Barnes [2006] NSWCCA 246 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185 Howard v Aikman [2015] ACTCA 64 Hudson v Wong [2010] ACTSC 108 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kaye v Siddiq [2013] ACTSC 62 Miles v The Queen [2016] ACTCA 54 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Pham [2015] HCA 39; 256 CLR 550 Singh v The Queen [2015] ACTCA 65 Sladic v Proud [2013] ACTSC 232; 237 A Crim R 1
Parties:	Vinh Quoc Vinh (Appellant) Tory Christensen (Respondent)
Representation:	Counsel G Mansfield (Appellant) K McCann (Respondent)
Solicitors O’Connor Harris & Co (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 64 of 2017
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 27 July 2017 Case Title: Christensen v Vinh Court File Numbers: CC2017/40750 CC2017/40752 CC2017/40753 CC2017/40754 CC2017/40755

MOSSOP J:

Introduction

This is an appeal from sentences imposed by the ACT Magistrates Court in relation to offences against the Food Act 2001 (ACT). The sentences were imposed on 25 July 2017.

The Court has jurisdiction to hear the appeal pursuant to ss 207(1)(a) and 208(1)(e)(ii) of the Magistrates Court Act 1930 (ACT). It is an appeal by way of rehearing.

Section 27(1) of the Food Act provides:

A person commits an offence if the person…

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 Vinh v Christensen

Details

AGLC: Vinh v Christensen [2017] ACTSC 389
Case: [2017] ACTSC 389
Decision Date: 19 December 2017

CaseChat Overview and Summary

The appellant, Mr. Vinh, appealed against his conviction and sentence imposed by the Magistrates Court, which found him guilty of multiple breaches of the Food Standards Code. The appeal contested the severity of the fines imposed, arguing that the magistrate had not considered current sentencing practices and had failed to properly apply the principles of totality and general and specific deterrence. The Court of Appeal was tasked with determining whether the magistrate had erred in the sentencing process and whether the sentences imposed were manifestly excessive.

The court examined whether the magistrate had made a manifest error by failing to consider current sentencing practices and the standard level of fines for similar offences. The court also considered if the magistrate had properly applied the principles of totality, ensuring that the overall punishment was proportionate and not unduly harsh. Furthermore, the court assessed the role of general and specific deterrence in the context of food hygiene offences and whether the sentences imposed adequately served these purposes.

After thorough examination of the sentencing process, the Court of Appeal found that the magistrate had not erred in the imposition of the sentences. The court held that the fines were within the range of what was considered appropriate for similar offences and that the principles of totality, general, and specific deterrence had been adequately applied. Consequently, the appeal was dismissed, and the sentences were confirmed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The sentences are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Vinh v Christensen [2017] ACTSC 389

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Cases cited in this decision · 19 of 19 shown

Director of Public Prosecutions v Dalgliesh (a pseudonym)
[2017] HCA 41 Para 1

…He submitted that contrary to the circumstances that existed in DPP (Vic) v Dalgleish [2017] HCA 41; 91 ALJR 1063, there was no suggestion that the range established by previous sentences is the result of a perpetuation of an error in principle that requires a remedy by a superior court.…
Miles v The Queen
[2016] ACTCA 54 Para 1

…to the matters referred to, the Court reaches the conclusion that the objective criminality of the offences was taken into account: Miles v The Queen [2016] ACTCA 54 at [80]-[81]; Delaney v The Queen [2013] NSWCCA 150 at [56]. The respondent pointed to statements in his Honour’s reasons that:…
Hostile Takeovers Pty Ltd v Hudson
[2016] ACTSC 185 Para 1

…not defining the possible range of sentences available. He also referred to the decision of the Chief Justice in Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185 at [48] where her Honour expressed the conclusion that the penalties imposed for the offences in that case were manifestly excessive and that if she fa…
Cajina v Narsey
[2016] ACTSC 10 Para 1

…aken into account and the circumstances of the plea: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22. The respondent referred to Cajina v Narsey [2016] ACTSC 10 at [21], where the Chief Justice identified that there was no requirement for a sentencing judicial officer to spell out the amount of discount, if any…
Singh v The Queen
[2015] ACTCA 65 Para 1

…nces were required to be passed. Consistently with this approach, the respondent referred to the decision of the Court of Appeal in Singh v The Queen [2015] ACTCA 65 at [59]-[60].…
Howard v Aikman
[2015] ACTCA 64

…LR 483 EPA v Barnes [2006] NSWCCA 246 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185 Howard v Aikman [2015] ACTCA 64 Hudson v Wong [2010] ACTSC 108 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kaye v Siddiq [2013] ACTSC 62 Miles v The Queen [2016] ACTCA 54 Mill v…
R v Pham
[2015] HCA 39 Para 1

…ences imposed by courts in the ACT for contraventions of s 27(1) of the Food Act . The appellant’s submissions referred to the decision in R v Pham [2015] HCA 39; 256 CLR 550 at [29] and the use that may be put to other cases as illustrating but not defining the possible range of sentences available. He also ref…
Barbaro v The Queen
[2014] HCA 2 Para 1

…a party seeking to establish that a sentence was manifestly excessive: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [59]-[61]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [43]. The respondent made submissions directed to each of the following matters which he submitted were relevant to assessing whether…
Sladic v Proud
[2013] ACTSC 232 Para 1

…inct from the obligations in ss 35 and 37 which do not have any application to offences which carry a fine only maximum penalty: see Sladic v Proud [2013] ACTSC 232; 237 A Crim R 1 at [53]. The respondent distinguished the position in the ACT from that in New South Wales (NSW) where there is a statutory obligation…
Elias v The Queen
[2013] HCA 31 Para 1

…s represent the legislature’s assessment of the seriousness of the offence which therefore “provides a sentencing yardstick”: Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27].…
Delaney v R; R v Delaney
[2013] NSWCCA 150 Para 1

…conclusion that the objective criminality of the offences was taken into account: Miles v The Queen [2016] ACTCA 54 at [80]-[81]; Delaney v The Queen [2013] NSWCCA 150 at [56]. The respondent pointed to statements in his Honour’s reasons that:…
Kaye v Siddiq
[2013] ACTSC 62 Para 1

…nces were comparable to the present matter. The respondent noted that the decisions of this Court in Hudson v Wong [2010] ACTSC 108 and Kaye v Siddiq [2013] ACTSC 62 were decisions to which the magistrate was referred and did provide some indication of sentencing practice.…
Hili v The Queen
[2010] HCA 45 Para 1

…ns of the respondent emphasised the heavy burden imposed upon a party seeking to establish that a sentence was manifestly excessive: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [59]-[61]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [43]. The respondent made submissions directed to each of the following ma…
Lyndell Hudson v Kim Wah Wong
[2010] ACTSC 108 Para 1

…as to whether those previous sentences were comparable to the present matter. The respondent noted that the decisions of this Court in Hudson v Wong [2010] ACTSC 108 and Kaye v Siddiq [2013] ACTSC 62 were decisions to which the magistrate was referred and did provide some indication of sentencing practice.…
Environment Protection Authority v Barnes
[2006] NSWCCA 246 Para 1

…The appellant pointed to the fact that the principle of totality is applicable where the penalties are imposed by way of a fine: EPA v Barnes [2006] NSWCCA 246 at [46], but that because fines cannot be made concurrent, it may be appropriate to lower each individual sentence so as to achieve an outcome which reflects…
Johnson v The Queen
[2004] HCA 15 Para 1

…offences as required by Pearce , nor lowered the individual sentences below what would otherwise be appropriate as referred to in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26]. The appellant submitted that the magistrate erred in the application of the principle of totality and that the total of the ind…
Cheung v The Queen
[2001] HCA 67 Para 1

…The fourth ground of appeal was that of manifest excess. The appellant referred to the statements in Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [14], [99], [165] emphasising that because findings of fact made against an offender must be made beyond a reasonable doubt, a judge will, in practical terms, often…
Pearce v The Queen
[1998] HCA 57 Para 1

…of appeal related to questions of totality based upon the proposition identified in Mill v The Queen (1988) 166 CLR 59 at 62-3 and Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 621-2, 623.…
Mill v The Queen
[1988] HCA 70 Para 1

…The third ground of appeal related to questions of totality based upon the proposition identified in Mill v The Queen (1988) 166 CLR 59 at 62-3 and Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 621-2, 623.…

Legislation cited in this decision · 6

Crimes (Sentencing) Act 2005 (ACT)
14, 33(1)(n), 33(1)(za), 35, 35(1)(b), 3... 8 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
207(1)(a), 208(1)(e)(ii), 218 4 mentions (from Para 1)
Food Act 2001 (ACT)
19, 27(1) 3 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
22 1 mention (from Para 1)
Legislation Act 2001 (ACT)
133(2) 1 mention (from Para 1)