Pradhan v Gale [2006] ACTSC 29 (7 April 2006)

Last Updated: 22 May 2006

NITEENKUMAR CHANDRASEN PRADHAN v MATTHEW JOHN GALE

[2006] ACTSC 29 (7 APRIL 2006)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE ACT MAGISTRATES COURT

No. SCA 4 of 2006

Judge: Gray J

Supreme Court of the ACT

Date: 7 April 2006

IN THE SUPREME COURT OF THE )

) No. SCA 4 of 2006

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ACT MAGISTRATES COURT

BETWEEN: NITEENKUMAR CHANDRASEN PRADHAN

Appellant

AND: MATTHEW JOHN GALE

Respondent

ORDER

Judge: Gray J

Date: 7 April 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The order of the Chief Magistrate of 3 February 2006 be varied to require that Niteenkumar Chandrasen Pradhan report to the Officer-in-Charge at the Symonston Periodic Detention Centre at 7.00 pm on 21 April 2006.

1. In this matter, the appellant appeals from a sentence of six months imprisonment to be served by way of 24 periods of periodic detention imposed on him by the Chief Magistrate on 3 February 2006 in respect of a charge of intentional possession of child pornography. The ground of appeal is that the sentence imposed in all the circumstances was manifestly excessive.

2. On 3 June 2005, the police executed a search warrant on the appellant's premises and discovered that a computer owned by the appellant held a large number of homosexually-orientated images. There was also a download on CDs of several hundred images depicting naked boys, which were alleged to constitute the child pornography. The accused pleaded guilty at the first available opportunity to intentionally possessing these images.

3. The charge of intentional possession of child pornography is an indictable offence with a maximum penalty of five years imprisonment or a fine of 500 penalty units. The matter was dealt with in the Magistrates Court, which meant that the maximum penalty that could be imposed was two years imprisonment. What the appellant puts in issue on this appeal is the question of whether the sentence is manifestly excessive and brings into play the principles set out by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499.

4. In this case, there is no obvious error of law or misapprehension of the facts that would entitle an appellate court to interfere. This matter really is a matter where it is said that the discretion miscarried because, looked at dispassionately, the order made was so outside the disposition available to the magistrate that it was not open to him to take the course that he did, and it is this aspect that the appellant must make good. If that were so, then it could be said that the magistrate acted upon a wrong principle.

5. It was put to me that the Chief Magistrate should not have placed the emphasis that he did upon the aspect of personal deterrence as far as the accused was concerned, and it was also put that the appellant had left his job as a consequence of these charges and was unable to continue working in that employment due to the embarrassment of his situation.

6. As far as the aspect of personal deterrence was concerned, in my view the Chief Magistrate was entitled to have significant regard to that. There is a passage in the pre-sentence report that entitled the Chief Magistrate to adopt that course. That passage is under the heading of "The Assessment" and the writer expresses the view that:

The offender appears not to accept the seriousness of these offences. And although he claimed to acknowledge that his actions are wrong, he minimises his participation and appears to have little understanding of the unlawfulness of his behaviours.

7. One way of bringing home the consequences of offending is to impose a sentence, albeit not necessarily by the service of full-time custody, but one which demonstrates the consequences of antisocial behaviour of this kind. Once the magistrate had settled upon a sentence of imprisonment as being the appropriate response to offending of this nature, he had a discretion to select one of the sentencing options to not have that sentence served by way of full-time custody.

8. In my view, it cannot be suggested that he erred in considering imprisonment as an appropriate response to the offending behaviour and the complaint can only be directed to the exercise of the discretion in the form of the sentence to be imposed. It is the good, subjective features of the appellant that, in effect, justify the imposition of a sentence other than full-time custody, but it is not wrong in principle, nor is it an error of fact or law, or is so far outside the range of sentencing options open to the magistrate to impose a sentence of imprisonment to be served by way of periodic detention in this case.

9. In all the circumstances, and for these reasons, I dismiss the appeal.

10. I note that the appeal stays the execution of the sentence and I therefore vary the reporting order. The accused should report to the Symonston Periodic Detention Centre, Mugga Lane, Red Hill at 7 pm on Friday 21 April 2006.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 12 April 2006

Counsel for the prosecution: Mr J Lawton

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the accused: Mr J Sabharwal

Solicitor for the accused: Romano Satsia Kordis Legal

Date of hearing: 7 April 2006

Date of judgment: 7 April 2006