Gim Eng Moh v Shaun Pine [2010] ACTSC 27

Supreme Court of the ACT|2010-04-06|Before: Refshauge J

**1. The sentence imposed on 16 December 2009 for dishonestly attempting to deprive, SLR Camera, is set aside

2. The other sentences imposed on 16 December 2009 remain

3. Mr Moh is re-sentenced to 3 months imprisonment, sentence to commence on 20 November 2009.

Despite some controversy and dispute, the ACT is fortunate to have enacted the Human Rights Act 2004 (ACT) (the Human Rights Act), introduced and strongly supported by the then Attorney-General and Chief Minister.
The preamble to the Act states
- (1) Human rights are necessary for individuals to live lives of dignity and value;
- (2) Respecting, protecting and promoting the rights of individuals improves the welfare of the whole community_._

The Act then lists in Part 3 certain rights including s19(1) which provides

(19)(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person_._

In my view, this means that when a judicial officer is sentencing an offender, he or she, particularly if a sentence of imprisonment is to be imposed, must act with courtesy, respect the inherent dignity of the offender who, despite being an offender, and even where the offender has committed a serious offence of which the community rightly seeks that the court expresses strong disapproval, remains a human person whose inherent dignity is to be respected.
It seems to me that in sentencing Gim Eng Moh, the appellant before me, the Learned Sentencing Magistrate fell short of this obligation. His Honour was rude to Mr Moh's lawyer, he used exaggerated and extreme language in describing the activities of Mr Moh during sentencing submissions, and he then failed to comply with the statutory obligations under the Crimes (Sentencing) Act 2005 (ACT).
None of this was necessary. It did not enhance the sentencing process. The first failure of process is, however, irrelevant to the grounds of the appeal. However, it may explain how the proceedings failed to deliver the result that the community and Mr Moh were both entitled to expect.
Both are entitled to expect that sentencing proceedings will be conducted fairly, with dignity and according to law and the Human Rights Act mandating that a sentence which deprives a person of their liberty will only be imposed according to law, s 18(2) of the Human Rights Act.
Mr Moh was charged with attempting, by deception to obtain dishonestly a digital SLR camera belonging to a retailer with the intention of permanently depriving the retailer of that property. This offence, contrary to s 326 of the Criminal Code 2002 (ACT), rendered him liable to 1,000 penalty units, that is, a fine of $110,000 or imprisonment for 10 years or both.
He was also charged with four counts of knowingly possessing a false document, namely a New South Wales driving licence and three credit cards with the intention of dishonestly inducing someone else to accept them as genuine and, thereby, dishonestly obtain a gain. This offence, contrary to s 348 of the Criminal Code 2002 (ACT), carries the same maximum penalty.
The offences arose when Mr Moh attended at the retailer's store on

20 November 2009 and sought to purchase a digital camera valued at $1,599. He offered a credit card to pay for the purchase. When the sales assistant attempted to process the transaction the credit card was declined. The sale assistant sought identification. Mr Moh handed over the false driver's licence. The sales assistant became suspicious and called the store security staff who, apparently, called the police. 8. The police arrested Mr Moh and he was taken to the City Police Station. An interpreter was arranged and Mr Moh made a frank confession to all the charges.

He appeared in court the next day and bail was refused. He appeared again three days later representing himself with an interpreter and bail was again refused. The matter was adjourned for about two weeks. When he returned to court on 7 December 2009, no interpreter was available and the matter had to be further adjourned. He came before the Learned Sentencing Magistrate on 16 December 2009.
In presenting the plea in mitigation, Mr Moh's lawyer explained that he was a 33-year old Malaysian national. He had come to Sydney on a tourist visa to, as he put it in some immigration papers, "see some tourist things" in Australia.
He arrived in Sydney on, again an immigration officer advised, 11 November 2009. Mr Moh's lawyer said that shortly after he arrived, it is not clear whether this was hours or days, presumably the latter, he went to a club where there were poker machines and spent some of the $1,000 he had brought with him.
He instructed his lawyer that he was approached by two men who asked him if he needed money for gambling on the poker machines. They offered him a loan of $1,500 which he accepted and gambled about $1,000 of it away.
The two men returned and demanded the $500 remaining be returned to them together with a further $1,500, making a total of $2,000. When he was unable to pay, they told him he could work for them to repay them. He was then taken in a car to a destination he did not know, though it was a private residence. He remained there, virtually imprisoned, for three or four days. He was apparently able to telephone his father in Malaysia and express to him fears about what was going to happen to him.
The men eventually returned and drove him to Canberra on 15 or 16 November. He was put in a cheap hotel and on 20 November the men returned, gave him the credit cards and licence and told him to purchase certain specified goods for them. He attempted to do so and was arrested.
The Learned Sentencing Magistrate expressed some scepticism at this narrative and, it was reasonable that he do so. These facts are almost so incredible that they might be true. The prosecution did not, however, invite his Honour to reject them, and that is, of course, not necessarily determinative but is a relevant matter.
Part 3.10 of the Magistrates Court Act 1930 (ACT) regulates appeals from the Supreme Court from decisions of a Magistrate being of course a decision of the Magistrates Court. This appeal is brought under s 208(1)(e)(i) of that Act which gives the court jurisdiction to hear and determine appeals against sentences of imprisonment imposed under part 3.2 of the Crimes (Sentencing) Act 2005 (ACT), which is the sentence imposed.
Once the appeal has been instituted, the orders of the Magistrates Court are stayed. That provides availability for bail, although bail was not granted to Mr Moh in this case. It does raise, however, the need for the appeal court to bear in mind that Mr Moh's present custody will not, absent an appropriate order of this court, count as part of the sentence to be served.

20. Such an appeal is by way of re-hearing, Campbell v Fortey (1987) 85 FLR 462 (at 464-5). As I said in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at 78):

It is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong by: that body falling into error of law, making a finding of fact that is clearly wrong, exercising a decision on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not likely be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision which should have been made by the body from which the appeal is taken, but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal by making its own decision in the circumstances.

The principles on which such appeals are to be conducted seem on the basis of the authorities to be as follows:
1. The court should only exercise its powers to intervene where, having regard to all the evidence before it, the order appealed from is demonstrated to result from some legal, factual or discretionary error.
2. Where no oral evidence is given in the court below, or the trial judge's findings based on oral evidence are not challenged, the appellate court is in as good a position as the lower court to decide the proper inferences to be drawn from the undisputed facts, but the appellate court must give respect and weight to the conclusion of the magistrate, although once having reached its own conclusion must give effect to it.
3. The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance.
4. Such an error may be that the court has taken into account irrelevant considerations or failed to take into account relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.
5. The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case error may be inferred given that the sentence is excessive, unreasonable, inadequate, unjust or wrong - and that of course is the conclusion that a different sentence is appropriate.
6. Despite the finding of error, if the original sentence nevertheless appears to be appropriate it appears that the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the sentence.
One of the grounds of the appeal was that the sentence was manifestly excessive. In Hawkins & Hawkins [2009] ACTSC 148 I set out the law as I understood it in relation to the appeal ground that the sentence is manifestly excessive and I adopt the comments that I made there.
The Learned Sentencing Magistrate's remarks on sentence were extremely brief. They did not meet the standard of either informing Mr Moh, or this court on appeal what his Honour had considered and what he had taken into account. They did not explain to Mr Moh why a custodial sentence was appropriate and as a sentence of last resort no other sentence was appropriate.
I have elsewhere recognised that brief remarks are inevitable in a busy court, but the court does have a duty to ensure that the offender understands why the penalty which he or she must suffer has been imposed
That is part of treating an offender with the dignity due to him or her as a human person. It is, as the courts have often said, necessary so that an appellate court can understand the reasoning which has led to the sentence, Pettit v Dunkley (1971) 1 NSWLR 371.

The first ground of appeal is that the Learned Sentencing Magistrate took into account irrelevant considerations. In this, Mr Moh refers to comments made in argument to the effect that, one, Mr Moh was, "turned loose to go and buy - to burgle the stores of Canberra with false credit cards" and two, Mr Moh was, "turned loose with instructions to rape and pillage the stores of Canberra."
It was submitted that Mr Moh was not charged with burglary, an offence which, contrary to s 312 of the Criminal Code 2002 (ACT), carries a much high penalty, namely 2,000 penalty units or 20 years' imprisonment or both.
It is true, too, that the terms "rape and pillage" are extravagant. To rape relevantly is to plunder which of course means "to rob of goods or valuables by open force as in war, hostile raids or brigandage": see the Macquarie Dictionary.
It is important that a judicial officer in sentencing describes the offences and their criminality with fairness and measured accuracy. It is, when only brief sentencing remarks are made, not easy to discern whether such exaggerated descriptions have infected the sentence by placing the culpability of the offender at a higher level than it deserves.
In my view, I cannot be certain that these remarks did not mean that the Learned Sentencing Magistrate imposed a sentence more severe than was appropriate in all the circumstances.
The second ground of appeal was that the Learned Sentencing Magistrate failed to take into account Mr Moh's plea of guilty.
It is important in this context to note that he made a full confession when first Questioned by police. That clearly facilitated the criminal justice system, one of the rationales behind the granting of a discount for a plea of guilty: Cameron v The Queen (2002) 209 CLR 339 (at 343).
That Mr Moh did not enter the plea until his fourth appearance is explained by his self-representation on one occasion and the absence of an interpreter on the next. In my view, taking into account the confession adhered to on the plea, it must be taken as an early plea of guilty.
The Learned Sentencing Magistrate did know, of course, that he had pleaded guilty and, indeed, noted that at the beginning of the hearing. His Honour did not, however, refer to it again. In particular, his Honour did not mention it during argument or in the very brief reasons for sentence.
In Cotter v Corvisy (2008) 1 ACTLR 299 I said (at 310-11) that a failure to mention a plea of guilty to be taken into account can lead an appellate court to conclude that the plea of guilty was not taken into account. Clearly, his Honour has not heeded my comments. It seems to me that it is likely that his Honour failed to take into account the plea of guilty.
The third ground of appeal to the sentence was that the sentence was manifestly excessive. Ms Cory, who appeared for Mr Moh, did not, however, draw my attention to any authorities or any other similar material on which this ground was based. Indeed, she suggested that it was established by a failure to take into account a number of relevant considerations which s 33 of the Crimes (Sentencing) Act 2005 (ACT) requires the sentencer to take into account.
These were: 33(1)(j) the appellant's plea of guilty; 33(1)(m) the appellant's cultural background, character, antecedents and age; 33(1)(o) the probable effect that any sentence or order under consideration would have on any of the appellant's family; 33(1)(r) whether the imposition of a particular penalty would be likely to cause particular hardship to the appellant.
I have already referred to the first of these, the plea of guilty. In relation to the effect of the sentence on Mr Moh's family, I could find no material in the sentencing submission that was before the Learned Sentencing Magistrate about this ground. It is hardly a sustainable criticism of sentence that it failed to reflect a matter about which the sentencer had no information.
In relation to Mr Moh's cultural background, character, antecedents and age, there was material on which the Learned Sentencing Magistrate should have relied. These matters include that Mr Moh's English was limited, which would mean that he would be very isolated in custody and suffer a hardship as a result.
He was also, so far as the court was told, a man of 33 years of age, employed in Malaysia and with no criminal convictions. He should thus have been treated as a first offender and, in particular, one who had not been in jail before.
These were significant factors and it is hard to see how they have been reflected in the sentence. Of course, these were not prominently brought out in the submissions on behalf of Mr Moh though the material was there and this may explain the absence of effect on the sentence.
A particular hardship seems to have been Mr Moh's lack of English and his absence from his own country. The latter, it seems to me, has little weight for it can happen in many circumstances other than in the case of people entering Australia from overseas. The language matter I have already mentioned.
Ms Cory also referred to Mr Moh's immigration status. This is problematic. Ordinarily, it is not a matter to be taken into account in sentence, that Mr Moh would be deported and likely to be unable to return to Australia. That is a matter for the immigration authorities and not a matter that the court should consider. It is not relevant to sentencing, R v Tsui (1985) 1 NSWLR 308 (at 310). Certainly, the court should not interfere with a proper sentence in order to avoid an immigration consequence, Islam v The Queen (2006) ACTCA 21.
In all the circumstances I consider that the sentence was infected by error and should be set aside. In re-sentencing Mr Moh, I note that the offence seems to have been clumsily executed. While there was sophistication in the planning, as shown by the fake New South Wales driving licence, the fact that the first offer of a credit card failed to process the transaction shows how clumsy the matter was.
I propose to re-sentence him. I take into account Mr Moh's plea of guilty. I take into account the fact that he comes to the court with no prior convictions that the court is informed of. I note that he has employment in Malaysia and that he has family there with whom he has lived.
While the offences are serious offences because they have the capacity to undermine the economic and retail circumstances of the community, they certainly were not at the higher end of the range. In my view, taking into account all the relevant factors that have been mentioned, I consider that a period of three months' imprisonment for the offence of attempting dishonestly to obtain the digital camera belonging to the retailer with intention of permanently depriving the retailer would have been more than adequate in the circumstances.
Accordingly, I set aside that sentence. I do not disturb the other sentences but I direct that the sentences commence from 20 November 2009. Accordingly, Mr Moh has now served those sentences and he is free to go.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Appellant: Legal Aid Office (ACT)

Solicitor for the Respondent: Director of Public Prosecution (ACT)

(Sentencing) Act 2005

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