Tieu v McEwan [2007] ACTSC 49 (20 June 2007)

Last Updated: 28 July 2008

Thong Hung Tieu v Bradley Kenneth McEwan [2007] ACTSC 49 (20 June 2007)

EX TEMPORE

APPEAL FROM MAGISTRATES COURT - appeal against conviction - appeal against sentence

CRIMINAL LAW - artificially cultivating cannabis - trafficking in a trafficable quantity of cannabis

Criminal Code 2002 (ACT) ss 603 and 618

House v The King [1936] HCA 40; (1936) 55 CLR 499

The Queen v Tait (1979) 46 FLR 386

ON APPEAL FROM THE ACT MAGISTRATES COURT

No. SCA 6 of 2007

Judge: Spender J

Supreme Court of the ACT

Date: 20 June 2007

IN THE SUPREME COURT OF THE )

) No. SCA 6 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THONG HUNG TIEU

Plaintiff

AND: BRADLEY KENNETH McEWAN

Defendant

ORDER

Judge: Spender J

Date: 20 June 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. On 31 January 2007, Mr Thong Hung Tieu filed in the Supreme Court a Notice of Appeal in respect of, what was said to be, a term of imprisonment of 4 months imposed by Magistrate Burns on 29 January 2007.

2. The Notice of Appeal says that the appellant appeals from the following part of the order and then the words that follow are, "Conviction and severity." The grounds of appeal specified in that notice are:

" - I was not provided with an interpreter, & hence, I did not understand the process. I plead guilty without knowing what I was really pleading guilty for.

- I am the primary care giver of my elderly mother who is gravely ill."

3. When the appeal was called on today, Mr Tieu appeared for himself. The appeal, essentially, is to be seen against a total of 7 months imprisonment that was ordered by Magistrate Burns on 29 January 2007.

4. On that day, a sentence of 3 months imprisonment was imposed for one offence of artificially cultivating cannabis plants contrary to s 618(2) of the Criminal Code (ACT). That period of imprisonment was ordered to begin on 23 January 2007, being when Mr Tieu was taken into custody.

5. A conviction in respect of the offence of artificially cultivating cannabis plants constituted a breach of the recognizance into which Mr Tieu had entered on 23 November 2005, in respect of a charge of trafficking in a trafficable quantity of cannabis.

6. In respect of that matter, Magistrate Burns had said on 29 January 2007, that:

"[On 23 November 2005] I convicted him of a charge of trafficking in a trafficable quantity of cannabis and sentenced him to 6 months' imprisonment, suspended on his entering into recognizance, self in the sum of $2,000, to be of good behaviour for a period of 18 months."

7. Magistrate Burns said:

"The defendant is 44 years old. He has a lengthy criminal history, particularly in regard to drug offences and also including offences of dishonesty. Whilst he has served terms of imprisonment in the past, it is clear that many sentences have also been imposed directed towards his rehabilitation. Those efforts have failed.

As recently as 20 November 2005 ...when I convicted the defendant of a charge of trafficking in a trafficable quantity of cannabis and sentenced him to 6 months imprisonment, I suspended that sentence upon his entering into recognizance with conditions directed towards his rehabilitation. Within seven months, he has breached the recognizance by committing a further series of offences.

Little leniency can be shown to the defendant on the basis of his previous history. He is a mature offender who has shown little inclination to address his drug use, a factor that is likely to lead to serious criminal offending. He has a lengthy criminal history of breaching community based orders such that I have little confidence in his complying with orders directed towards his rehabilitation."

8. Magistrate Burns said:

"A sentence of imprisonment is a sentence of last resort. But I am satisfied that nothing left than an immediate term of imprisonment will be sufficient to operate as a deterrent in the defendant's case."

9. And later:

"An offender who breaches the terms of recognizance imposed on the suspension of a term of imprisonment should ordinarily expect the suspended term of imprisonment will become operative. I am obliged, however, to take into account the extent to which the defendant complied with the terms of the recognizance since November 2005.

Whilst it appears to me that the defendant's compliance has been superficial, I will nevertheless reduce the term of imprisonment from six months to one of four months. It is appropriate that this term be served cumulative upon the sentence of 3 months' imprisonment for the charge of cultivating cannabis.

10. In respect of the offence of artificially cultivating cannabis contrary to s 618(2) of the Criminal Code (ACT), Mr Burns recorded a conviction and imposed a sentence of 3 months imprisonment to commence on 23 January 2007.

11. For the offence of trafficking in a trafficable quantity of cannabis, Magistrate Burns sentenced Mr Tieu to 4 months imprisonment, cumulative upon the sentence of the 3 months imposed for the offence of artificially cultivating cannabis.

12. The effect of those sentences was that Mr Tieu was liable to serve a total term of 7 months imprisonment, which will expire on 22 August 2007, a little over 2 months from now.

13. In his oral submissions, Mr Tieu expressed his remorse and sorrow and said that he had the opportunity of a job with his sister as a chef. I note that when he last had employment, which was as long ago as 2004, it was with his sister, but because of his drug use, he desisted from that employment.

14. I get the impression from my observations of Mr Tieu today that he is serious in his statement that he intends to secure employment when he is able to, with his sister, and that he intends to conduct himself within the bounds of the criminal law.

15. I know, and I accept as genuine, his concern for his mother who is ill, but nothing that has been said by Mr Tieu, or from any of the material, the entirety of which I have examined, suggests that there was any appeallable error in the sentences that were imposed by Magistrate Burns on 29 January 2007.

16. Before any appeal can be successful, an error of the kind described by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 has to be established. A case giving appropriate guidance in respect of an appeal against sentence on the ground of severity is to be found in the joint judgment of Brennan, Deane and Gallop JJ in The Queen v Tait (1979) 46 FLR 386 where their Honours said, at 388:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence."

17. Here, in this particular case, in respect of the offence of artificially cultivating cannabis plants, the penalty is 2 years imprisonment. In respect of the offence of trafficking in a trafficable quantity of cannabis, the maximum term of imprisonment is 10 years, but when dealt with summarily it is 2 years.

18. Having regard to the chronology of the offences, to the circumstance that the offence of cultivating cannabis plants was committed whilst subject to the terms of the recognizance, and subsequent to a finding of guilt in respect of the offence of trafficking in a trafficable quantity of cannabis, there can be no suggestion, in my opinion, that the sentences were manifestly excessive.

19. Magistrate Burns, in his sentencing remarks, approached the task comprehensively and the sentences which his Honour did in fact impose were well and truly within the range of an appropriate penalty for each of those two offences.

20. The Magistrate did take into account, generously in my view, the time that Mr Tieu had spent in the community in respect of the recognizance in association with the 6 months suspended sentence.

21. Mr Tieu impresses me as a person who is of some considerable intelligence. He appreciates, in my estimation, his past history. I suspect that he is fully alive to the fact that any further drug conviction is going to be met with a severe custodial sentence. His efforts in respect of obtaining employment, and remaining drug free, are at least positive signs.

22. Despite this, there is no basis on which any error has been shown in the sentencing by Magistrate Burns. I note that Mr Tieu was represented by a solicitor, who spoke on his behalf before Magistrate Burns, and further the pre-sentence report contains admissions by Mr Tieu as to the criminality in respect of each of those offences.

23. For these reasons, the appeal is dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate: Click here for Picture

Date: 5 July 2007

The Appellant appeared in person

Counsel for the Respondent: James Lawton

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 20 June 2007

Date of judgment: 20 June 2007