Khan v R [2011] ACTSC 20 (8 February 2011)

Last Updated: 9 March 2011

JOHN KHAN v THE QUEEN [2011] ACTSC 20 (8 February 2011)

APPEAL – appeal from the ACT Magistrates Court – failure of sentencing magistrate to take guilty plea into account – insufficient weight given to the principles applicable to young offenders – appeal allowed – conviction confirmed – offender resentenced

Crimes (Sentencing) Act 2005

R v Fernando (1992) 76 A Crim R 58

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 69 of 2009

Judge: Nield A/J

Supreme Court of the ACT

Date: 8 February 2011

IN THE SUPREME COURT OF THE )

) No. SCA 69 of 2009

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JOHN KHAN

Appellant

AND: THE QUEEN

Respondent

ORDER

Judge: Nield A/J

Date: 8 February 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The appellant is resentenced.

1. The appellant is Jonathon Brendan Khan. He was born on 17 November 1989.

2. On 30 September 2002 the appellant committed his first offence. He was then aged only 12 years 10 months.

3. Between 30 September 2002 and 11 December 2007 the appellant was dealt with for 22 offences.

4. On 25 January 2008 he committed an offence of driving a motor vehicle whilst there was the special range of alcohol in his blood. He was then aged only 18 years two months.

5. On 28 October 2008 he committed an offence of burglary and an associated offence of theft. He was then aged nearly 19 years.

6. On 10 December 2008 he was dealt with for the offence of driving a motor vehicle while there was the special range of alcohol in his blood committed on 25 January 2008. Sentence was deferred on his entering into a bond to be of good behaviour of 12 months, that is 9 December 2009.

7. On 22 July 2009 he committed an offence of possessing a prohibited drug, namely cannabis, and an offence of possessing a knife in a public place without reasonable excuse. He was then aged 19 years eight months.

8. On 20 August 2009 he pleaded guilty to the offences of burglary and theft committed on 25 October 2008 and the offences of possessing a prohibited drug and possessing a knife in a public place committed on 22 July 2009.

9. On 16 September 2009 he failed to appear before a magistrate in the Magistrates Court in accordance with a bail undertaking entered into by him. He was then aged 19 years 10 months.

10. On 15 October 2009 he pleaded guilty to the offence of failing to appear in court.

11. On 20 October 2009 he appeared before a magistrate in the Magistrates Court on the sentencing proceedings. In addition to his being sentenced for the offences committed on 28 October 2008, see paragraph 5, 22 July 2009, see paragraph 7, and 16 September 2009, see paragraph 9, he was to be re-sentenced for the offence committed on 25 January 2008, see paragraph 4, in respect of which he was dealt with on 10 December 2008, see paragraph 6.

12. On the sentencing proceedings the magistrate received –

a) statements of facts related to the offences,

b) the appellant’s criminal record,

c) two pre-sentence reports.

13. The appellant did not give any evidence or adduce any evidence on the sentencing proceedings.

14. After hearing from the prosecutor and the appellant’s legal representative the magistrate gave his reasons for sentence in which he referred to –

a) the offences,

b) the circumstances in which the offences of burglary and theft were committed,

c) the appellant’s age,

d) the appellant’s guilty pleas,

e) the appellant’s various failures to attend the ACT Corrections Service for supervision and for the preparation of a pre-sentence report.

15. The magistrate imposed the following sentences –

a) the offence of burglary – imprisonment for 15 months,

b) the offence of theft – imprisonment for 15 months to be served concurrently with the sentence for burglary,

c) the offence of possessing a prohibited drug – a fine of $100, court costs of $61, criminal injuries compensation levy of $50,

d) the offence of possessing a knife in a public place – a fine of $300, court costs of $61, criminal injuries compensation levy of $50,

e) the offence of failing to appear – imprisonment for six months consecutively upon the sentences for burglary and theft, and

f) the offence of driving a motor vehicle while there was the special range of alcohol in the blood – a fine of $500, court costs of $61, criminal injuries compensation levy of $50 and disqualification from holding or obtaining a driver’s licence for six months.

The magistrate imposed a single non-parole period of 15 months.

16. On 11 November 2009 the appellant filed his notice of appeal with grounds that the magistrate failed to give adequate weight to –

a) the Fernando Principle,

b) the appellant’s youth, and

c) the appellant’s rehabilitation.

17. On 9 December 2009 the appellant was released from prison on bail pending the hearing of his appeal.

18. On 16 December 2010 the appellant was sentenced to imprisonment for nine months with four months to be served by periodic detention and five months to be suspended for an offence of assault and to imprisonment for other offences to be served by periodic detention.

19. On 31 January 2011 the appellant filed an amended notice of appeal with differing grounds of appeal.

20. On 4 February 2011 the appellant’s appeal came on for hearing before me. The appellant’s counsel told me that the appellant did not rely upon ground (3) referred to in the amended notice of appeal but relied upon the other grounds.

21. The basis upon which a person aggrieved by a decision of a magistrate may appeal to the Supreme Court is well known and need not be recited. Suffice it to say that error must be shown, although the sentence itself may show error. It is not a question of whether I, at first instance, would have imposed a lesser sentence or a more severe sentence for each of the offences but whether the magistrate erred in some way in determining the sentences that he imposed.

22. I think that it is convenient to deal with the grounds of appeal in reverse order.

23. The fifth ground of appeal asserts that, “The learned magistrate erred in failing to take account or take proper account of the offender’s guilty plea.” The magistrate said that the appellant’s guilty pleas “are of limited benefit.” However, the magistrate did not say whether he had imposed a lesser sentence for each offence because of the appellant’s guilty pleas and, if he had, what sentence he would have imposed for each offence had the appellant not pleaded guilty as required by section 37(2)(a) of the Crimes (Sentencing) Act 2005. Nothing that he said in his remarks on sentence would permit a calculation of the discount in sentence for each offence that he gave for the appellant’s guilty pleas.

24. I regard the appellant’s guilty pleas as having significant value. They were entered at the earliest appropriate time. They had a utilitarian value. They facilitated the course of justice. The appellant was entitled to a real discount in sentence for each offence because of his guilty pleas, such discount to be determined having regard to the strength of the Crown’s case, see section 35(4) of the Crimes (Sentencing) Act 2005, and to the fact that the lesser sentence must not be unreasonably disproportionate to the nature and circumstances of the offence, see section 35(6) of the Act.

25. I consider that the appellant was entitled to a discount in sentence of 25% on account of his guilty pleas.

26. The fourth ground of appeal asserted that, “The learned magistrate erred in failing to give consideration to the offender’s Aboriginality and its relevance to the proper exercise of the sentencing discretion.” The magistrate had two pre-sentence reports, the first dated 23 September 2009 and the other dated 16 October 2009. The first

pre-sentence report detailed the steps taken by ACT Corrective Services for the appellant to attend for an interview for the preparation of the report. The second report was a comprehensive report prepared following an interview with the appellant. Although the magistrate did not refer to the decision of Wood J in R v Fernando (1992) 76 A Crim R 58, the magistrate was well aware that the appellant was of Aboriginal descent and that he had lived a difficult, disrupted and dysfunctional life.

27. I consider that the magistrate cannot be blamed for not referring to Fernando or for not saying that the appellant’s unhappy and unsatisfactory childhood and teenage years had affected the sentencing decision because the appellant’s then legal representative did not put any submission to the magistrate that Fernando was applicable and in what way it was applicable in the sentencing decision.

28. The second ground of appeal asserted that, “The learned magistrate erred in failing to give sufficient weight to the principles applicable to youthful offenders and the objective of imposing a sentence constructively adapted to the individual offender under section 6(c) of the Crimes (Sentencing) Act 2005.” The magistrate was well aware of the appellant’s date of birth and therefore his age at the time of committing the offences and the time of sentencing. However, regretfully, he did not say whether, and, if so how, the appellant’s age played a part in the sentencing decision.

29. The first ground of appeal asserted that, “The sentences imposed were manifestly excessive in all the circumstances and in particular having regard to the offender’s age and antecedent history.” This ground requires a consideration of all relevant circumstances that are required by section 7, 10, 33 and 35 of the Crimes (Sentencing) Act 2005. Without referring to everything about the various offences and the appellant, I say that the sentences for the burglary, theft and failure to appear offences are not manifestly excessive. Indeed, it might be thought, having regard to the appellant’s age and his antecedents, the sentences erred on the side of inadequacy.

30. In my view the second and fifth grounds of appeal have been established but the other grounds have not been established.

31. Before I continue, I wish to say that the magistrate gave undue weight to the appellant’s failures to accept supervision and to attend for interview for the preparation of a pre-sentence report, although he was, of course, entitled to take such failures into account on the question of the appellant’s rehabilitation. It must be said that the appellant failed and failed persistently to put his best foot forward. Hopefully, he will take a different position in the future.

32. Also I wish to say that, although he said that, “I am of the view that no other penalty apart from a penalty of imprisonment is appropriate in the circumstances of the offending and the background and attitude of the defendant,” the magistrate did not say why a community service order or a periodic detention order was inappropriate when the appellant had not been dealt with for an offence other than two driving offences as an adult and had not served a prison sentence as an adult. Of course, there are offences which warrant a sentence of imprisonment when committed by a first time offender aged 18 or 19 or 20 but in my view the appellant’s offending did not warrant a sentence of full time imprisonment, however appropriate the sentences of imprisonment were.

33. I wish to say also that the fact that the sentencing proceedings in the Magistrates Court are less formal than those proceedings in this court does not relieve an offender’s legal representative of adducing such evidence as is considered relevant to the sentencing proceedings to permit a magistrate to have all relevant evidence available to him or her in making a sentencing decision. An offender’s legal representative cannot expect a magistrate to make an appropriate decision if that magistrate is not provided with all appropriate evidence on which to make that decision. In the present case I regret to say that the appellant’s legal representative did not adduce material which his present legal representative would like to have adduced.

34. I have been provided with a pre-sentence report dated 30 June 2010 which obviously the magistrate did not have available. Attached to that pre-sentence report is a letter from the Ray Thorne Substance Misuse Rehabilitation Centre dated 28 May 2010. It is clear from that letter and the pre-sentence report that the appellant has taken some positive steps towards his rehabilitation. As I have said already, it is hoped that he will continue with those steps.

35. Considering everything that I must consider, and I will not bother to repeat everything, I have determined, as I have already indicated, that the sentences imposed by the magistrate were not manifestly excessive and so I impose the following sentences;

a) burglary – imprisonment for 20 months, reduced by 25% to 15 months;

b) theft – imprisonment for 20 months, reduced by 25% to 15 months;

c) failing to appear – imprisonment for nine months, reduced by 25% which, for ease of calculation, is three months, to six months.

36. As to totality, the sentences for the offences of burglary and theft should be served concurrently with each other and the sentence for failing to appear should be served consecutively upon the other sentences, producing a total of imprisonment for 21 months.

37. However, taking into account the time already spent in prison by the appellant, which period is calculated to be 59 days, almost two months, I reduce the period of 21 months by two months to 19 months.

38. I consider that in the relevant circumstances a single non-parole period should be imprisonment for 11 months with such period to be served by periodic detention.

39. Accordingly, I allow the appellant’s appeal against the sentences imposed upon him for the offences of burglary, theft and failing to appear. So far as I am aware, he has not appealed against the fines imposed upon him for possessing a prohibited drug, possessing a knife in a public place and driving a motor vehicle whilst there was present in his blood the special range of alcohol.

40. I sentence the appellant as follows;

a) the offence of burglary – imprisonment for 15 months from 8 February 2011 to 7 May 2012,

b) the offence of theft – imprisonment for 15 months from 8 February 2011 to 7 May 2012,

c) the offence of failing to appear – imprisonment for six months from 8March 2012 to 7 September 2012.

41. I order that 11 months of the total period of 19 months be served by periodic detention commencing today, 8 February 2011, and ending on 7 January 2012, with the first reporting day being 11 February 2011.

42. I order that the balance of the total sentence of 19 months, that is,

eight months from 8 January 2012 to 7 September 2012, be suspended on the appellant entering into a good behaviour order pursuant to section 13(2) of the Crimes (Sentencing) Act 2005 for the period of 12 months, that is, from 8 January 2012 to 7 January 2013, such order to be subject to the following conditions in addition to the core conditions specified in section 86 of the Crimes (Sentencing) Act 2005 –

a) the appellant accept the supervision of the ACT Corrective Services and obey all reasonable directions to the person in charge of him including any direction that he undergo random urinalysis and,

b) the appellant accept such programs, therapies and courses as may be directed by ACT Corrective Services.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:

Date: 24 February 2011

Counsel for the appellant: Mr A Hopkins

Solicitor for the appellant: Aboriginal Legal Service

Counsel for the respondent: Ms S McMurray

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 4 February 2011

Date of judgment: 8 February 2011