Kelly v Johnston [2012] ACTSC 178

3. After hearing submissions by counsel for the appellant and the informant on 22 March 2012, the learned Magistrate convicted the appellant of the charge, fined him $300, with criminal injury compensation levy of $50 and costs of $67. His Honour granted him three months to pay those amounts.

4. The appellant now appeals from the orders of the sentencing Magistrate. The grounds of appeal are:

(a) His Honour erred by failing to place sufficient weight on the appellant's subjective circumstances;

Particulars

His Honour did not place sufficient weight on the appellant's youth, good character and lack of antecedents

(b) His Honour erred by failing to consider the current sentencing practice of the court as required under s 33 (1) (z) of the Crimes (Sentencing) Act 2005.

(c) His Honour erred by failing to properly consider whether the recording of a conviction would cause particular hardship to the appellant as required under s 33 (1) (r) of the Crimes (Sentencing) Act 2005.

Particulars

His Honour failed to give proper consideration to the impact of a conviction upon his ability to obtain suitable employment and the impact upon his future career.

(d) His Honour erred by taking into account and/or making findings not supported by the evidence.

Particulars

His Honour found that the appellants offending behaviour was a "deliberate course of conduct" and placed too much weight on this fact in determining the appropriate sentence.

(e) The sentence is manifestly excessive.

5. The principles relevant to this appeal 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] HCA 40; (1936) 55 CLR 499, where Dixon, Evatt and McTiernan JJ stated at 505 that:

...the 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 in which an exercise of discretion should be determined is governed by established principles. It is not enough that the judge's 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 effect 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 him if it has the materials for doing so.

6. These principles have been restated in numerous cases: Lowndes v R [1999] HCA 29; (1999) 195 CLR 665; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Petreski v Cargill (1988) 31 A Crim R 277. I will now turn to the grounds of appeal relied upon by the appellant.

Failure to place sufficient weight on the appellant's subjective circumstances

7. The appellant submits that he came before the court with extremely positive subjective features and that a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 should have been imposed. He was 19 years old at the time of the offence, employed as an IT support person and completing vocational training with his employer. He had no reported health issues or ongoing issues with drugs or alcohol. The appellant submits that he presented as a young man of excellent character, and was variously described by his referees as a man of honesty, integrity and respect.

8. In his written submissions in support of the appeal counsel for the appellant accepts that the sentencing Magistrate had regard to the appellant's subjective features in considering a non conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005. An examination of the transcript of the sentence proceedings before the Magistrate, and his sentencing remarks, confirms that the Magistrate did indeed take into account the appellant's subjective features. As such it cannot be said that the Magistrate failed to take into account a material consideration. The appellant's real complaint is that the Magistrate gave other sentencing considerations greater weight. This does not reveal an error of either fact or law on the part of the Magistrate. The appellant's real complaint is that the sentence was manifestly excessive.

Failure to consider current sentencing practice of the court

9. It is undoubtedly correct that s 33 (1) (z) of the Crimes (Sentencing) Act 2005 required the Magistrate to consider current sentencing practice in sentencing the appellant. During the course of submissions before the Magistrate the appellant's then counsel had the following exchange with the Magistrate:

Mr Saeedi: In terms of other relevant factors, the most prominent one is s 33 Z (sic) which says your Honour's got to take current sentencing practices into account. Unfortunately different magistrates have had different views about possession of drugs and how to apply the different sentence, but there are certainly a number of magistrates in New South Wales who I've appeared in front of who regard this level of offending more of a health hazard rather than a more serious offence.

His Honour: Even with cocaine?

Mr Saeedi: Even with cocaine. And there are certainly some - there are a number of magistrates here and a number of occasions where I've appeared on matters, and I don't have any empirical data, that there are a number of matters, your Honour, where I've appeared and the s 17 has been granted in very similar circumstances. I've had one just recently which involved a fellow possessing methamphetamine, which is ice, effectively, which is in my mind more serious than cocaine, and despite that he was dealt with under s 17 with a good behaviour bond.

10. The appellant's counsel submits that it is apparent from that exchange that the Magistrate had some difficulty accepting that a non-conviction order could be an appropriate disposition for a charge of possession of cocaine. He submits that this disbelief evidences a rejection of current sentencing practice as alluded to by the appellant's then counsel at the sentence hearing. The appellant then further submits that cases such as R v Popovski [2009] ACTSC 131 demonstrate that a non-conviction order can be made, even in a case where the quantity of cocaine possessed was a trafficable quantity.

11. This ground of appeal has no merit, and verges on the bizarre. The anecdotal comments made by the appellant's then counsel before the Magistrate were incapable of demonstrating what was the current sentencing practice with respect to offences of this type in the courts of this territory. If counsel then appearing for the appellant was seriously submitting that a non-conviction order was in accordance with sentencing practice in this territory for this type of offence, he had an obligation to assist the Magistrate by putting before his Honour appropriate material. In fact, the submissions made by the appellant's then counsel, as set out above, were apt to suggest that there was no settled practice in relation to the types of sentence appropriate for this type of offending in this territory.

12. The appellant provided me with a copy of sentencing comments made by Rares J in The Queen v Popovski. With respect, I find those comments of little assistance. If the intention in providing me with that document was to demonstrate that a non-conviction order can be made with respect to offences of possession of a drug of dependence, and in particular cocaine, then I am in full agreement with that proposition. For my part, I would not wish to make any comment as to whether the making of such order was appropriate in the case of The Queen v Popovski. However, I do not see that case as establishing a tariff for this type of offending.

Failure to properly consider particular hardship of a conviction.

13. Section 33 (1) (r) of the Crimes (Sentencing) Act 2005 required the Magistrate to give consideration as to whether the recording of a conviction would be likely to cause particular hardship to the appellant. In his sentencing submissions before the Magistrate, then counsel for the appellant submitted that the impact of a conviction would be significant as it had already impacted upon the appellant's ability to gain employment in the public service. The appellant submits that while the evidence did not reveal the precise impact that a conviction would have, considerable weight ought to have been placed on this factor.

14. The appellant's reference to material having been before the Magistrate establishing that the offence had already impacted upon his ability to gain employment in the public service is apparently a reference to certain remarks made by the appellant's then counsel in the course of his submissions to the magistrate:

Your Honour, by way of education he has completed year 12. He is currently employed with a company called Apex Telecom as an IT support person. Through that company, your Honour, he is also studying further relevant courses directly related to the work that he is undertaking.

Your Honour, the position that he was - my instructions are that he was offered a job in the public service in a similar position. Unfortunately he could not take it at the time because of the police checks involved and this current matter outstanding.

15. It is unclear from this somewhat cryptic statement whether the job offer was withdrawn by reason of the charge then outstanding against the appellant, or whether in fact he discontinued his application based upon his personal knowledge that the offence would be revealed by police checks. The material put before the Magistrate did not demonstrate that the appellant had been, or would in the future be, precluded from obtaining employment in the public service if a conviction were recorded against him.

16. Virtually every person convicted of a criminal offence may suggest that the imposition of a conviction will have some effect upon their lives. The legislature recognised this in the Crimes (Sentencing) Act 2005. Section 33 (1) (r) of that Act requires a sentencing court to give consideration to whether the recording of a conviction is likely to cause not just hardship, but particular hardship to the offender. In my opinion, the material put before the Magistrate did not demonstrate that the appellant would suffer particular hardship if a conviction were recorded.

Taking into account and/or making findings not supported by the evidence

17. The appellant complains that the Magistrate made a finding that his behaviour was a "deliberate course of conduct", and placed too much weight on this finding in determining the appropriate sentence. The passage from the Magistrate's sentencing comments complained of is:

In my view, notwithstanding the submissions of Mr Saeedi, in this case it is appropriate to record a conviction and to proceed by way of fine only. The matter which persuades me that I should adopt that approach is that it appears in this case it was a deliberate course of conduct on the defendant's part, and whilst I accept that he sees it now as being a mistake, it's a matter where there must be an element of specific deterrence, but also the issue of general deterrence in relation to this kind of offence is important, and people must understand that they cannot go out to pubs and clubs in the Territory carrying drugs of dependence and not have a conviction recorded.

18. The appellant's counsel submits that the Magistrate used the finding that the appellant's conduct was deliberate as an aggravating circumstance. In my opinion it is quite clear that the Magistrate did not use that finding in that way. It is trite to observe that the appellant's plea of guilty carried with it an acknowledgement that his possession of the drug of dependence was deliberate, in the sense that his plea acknowledged that he was aware of the nature of the substance in his custody, and that he intended to exercise exclusive control over it. If the Magistrate's sentencing comments about the appellant engaging in a deliberate course of conduct had been directed simply at the elements of the offence, there may well be merit in the proposition that his Honour took into account an irrelevant consideration in determining whether he should exercise his discretion under s 17. However, I am satisfied that what his Honour was referring to went beyond those matters necessarily admitted on elements of the offence by the appellant's plea. In the course of his sentencing submissions, the appellant's then counsel said:

In relation to the offence, your Honour, he instructs me that his mates - he was going through a stage where his mates were experimenting with drugs. He thought he would give it a go, and he obviously got caught.

19. His Honour's comments about the appellant engaging in a deliberate course of conduct should be read in the light of this submission. This was not a case where the appellant had spontaneously purchased drugs at a nightclub whilst intoxicated. He had apparently made a deliberate decision to experiment with illicit drugs and, as his counsel observed, simply got caught. His Honour's comment did not indicate that he was taking into account one of the elements of the offence as an aggravating circumstance. Rather, his Honour was pointing out that a mitigating circumstance which may have been relevant to the decision to apply s 17 was absent. In doing so his Honour did not fall into error.

20. The maximum penalty applicable for the offence to which the appellant pleaded guilty was a fine of $5,500, two years imprisonment or both. It cannot seriously be suggested that the imposition of a fine of $300 was a manifestly excessive sentence. The appellant's real complaint is that the Magistrate did not exercise his discretion under s 17 to impose a non-conviction order. It should never be forgotten that the ordinary and expected outcome of the proof of criminal offending is the imposition of a conviction. Section 17 provides a discretion, where the court considers it appropriate, to proceed without recording a conviction. It has not been demonstrated that the Magistrate fell into error in the exercise of his discretion. The penalty imposed was not manifestly excessive.

21. The appeal is dismissed. The orders of the magistrate are confirmed, with the appellant having three months from today to pay the fine, costs and levy imposed.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the respondent: Director of Public Prosecutions