Abbott v Hussain - [2003] WASCA 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ABBOTT -v- HUSSAIN [2003] WASCA 58

CORAM: EM HEENAN J

HEARD: 11 MARCH 2003

DELIVERED : 11 MARCH 2003

FILE NO/S: SJA 1112 of 2002

BETWEEN: BRIAN RICHARD ABBOTT
Applicant
AND
SAYED AHMED HUSSAIN
Respondent

Catchwords:

Application for extension of time and for leave to appeal from sentence imposed in Court of Petty Sessions - Pleas of guilty by respondent - Dismissal without conviction pursuant to s 19B Crimes Act (Clth) - Discretionary decision - Prosecution appeal - No adequate explanation for delay in seeking leave to appeal - No arguable case showing error in sentencing discretion - Extension of time refused

Legislation:

Crimes Act (1914) (Clth), s 16A(2), s 19B, s 29(1)(a)

Criminal Code (Clth), s 147(2)

Justices Act, s 185

Result:

Application for extension of time for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Mr M A Perrella
Respondent: Ms G A Archer

Solicitors:

Applicant: Commonwealth Director of Public Prosecutions
Respondent: Legal Aid of Western Australia

Case(s) referred to in judgment(s):

Bond v R (2000) 201 CLR 213
Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Dinsdale v The Queen (2000) 202 CLR 321
Fleming v R (1997) 25 MVR 75
Jensen (1991) 52 A Crim R 279
R v Darby, unreported; Supreme Court of Victoria; 2 May 1975
R v McDonald [2000] WASCA 336
R v O'Keefe [1979] VR 1

Case(s) also cited:

Barany v R (2000) 114 A Crim R 426
Cobiac v Liddy (1969) 119 CLR 257
Dempster v NCSC (1993) 9 WAR 215
Lancaster v The Queen [1989] WAR 83

EM HEENAN J: This is an application made pursuant to s 185 of the Justices Act for leave to appeal by the complainant against the orders made by his Worship Mr Antoine Bloemen SM in the Court of Petty Sessions at Broome on 5 March 2002. It also includes an application to extend time to apply for leave to appeal.
On that occasion the learned Magistrate had before him two complaints in the name of the applicant against Mr Sayed Ahmad Hussain, the present respondent, alleging, respectively, an offence contrary to s 29(1)(a) of the Crimes Act 1914 (Clth) that at Derby on 9 April the respondent did intentionally damage Commonwealth property, namely, fluorescent lights, belonging to the Department of Defence; and, secondly, that there had been an offence contrary to s 147(2) of the Criminal Code (Clth) committed on 9 April 2002 at Derby in that the respondent made to another person, namely, Michael Murdoch, who was a Commonwealth public official, namely, a detention supervisor, because of the official status as a public official, a threat to cause harm to the said official, the said respondent having been reckless as to causing the said official to fear that the threat would be carried out.
The respondent pleaded guilty to both those charges and the learned Magistrate heard submissions from counsel for the complainant and on behalf of the respondent as to the disposition of the offences. There were lengthy oral submissions which elaborated upon written submissions which had been filed on both sides. Significantly, both sets of written submissions addressed the issue of whether or not the respondent might be discharged without proceeding to a conviction pursuant to the power conferred on the Court by s 19B of the Crimes Act (Clth). Submissions dealing with the law relating to s 19B of the Crimes Act and its application to the facts of this particular case were contained in the written materials before the learned Magistrate and were enlarged upon in the course of oral argument.
It is evident from the transcript which is annexed to the affidavit in support of the application for leave to appeal that close attention was paid to the provisions of s 19B and its application to the facts of these particular offences. While the transcript of the proceedings is incomplete, and in particular the submissions made on behalf of the respondent have not been completely recorded, from the materials at page 12 of the transcript and following, when his Worship came to decide the disposition of the offences, it is evident that s 19B was being addressed. His Worship said:
"Thank you, Mr Perella. Yes, please stand up, Mr Hussain. You've pleaded guilty to the charge that on the 9th of April 2000 --
MALE SPEAKER: ... (indistinct) ...
MS DIAS: He pleaded guilty to the charge in April.
MALE SPEAKER: ... (indistinct) ...
HIS WORSHIP: On the 9th of April.
MALE SPEAKER: ...(indistinct) ...
HIS WORSHIP: He has pleaded guilty to both charges.
MALE SPEAKER: ... (indistinct) ...
HIS WORSHIP: I've heard submissions by counsel on your behalf and by the prosecutor.
MALE SPEAKER: ... (indistinct) ...
HIS WORSHIP: I've had the benefits of having written submissions supplied to me by both parties.
MALE SPEAKER: ... (indistinct) ...
HIS WORSHIP: I have considered all sentencing and I consider that I have sufficient material before me to apply in each case section 19(b)(1).
MALE SPEAKER: ... (indistinct) ...
HIS WORSHIP: And therefore no conviction will be recorded."
Counsel for the present applicant then asked to be heard and requested for the purpose of the transcript that the reasons for adopting the procedure provided by s 19B be itemised. His Worship then said:
"My reason being is that I have heard your submission, I have heard the submission from the defence counsel. The offences are on the very lower end of the scale. Your submission in relation to 8, particularly sub (1), sub (2), sub (3) and sub (4) ... "
[I interpolate that this is a reference to the written submissions filed by the complainant]
"but I do not consider that the offences of this nature come under those headings, as you stated. I've considered that the defendant has co‑operated with the authorities. He has pleaded guilty at the first opportunity. I've also considered, as you mentioned in paragraph 8(1):
'The safety of the officers and of the institution' - and I consider that not bringing danger, that his action - 'the safety of the officers and institution.' "
Although it is rather difficult to follow the grammar, which may be due to inadequacies in the recording, the sense is plain that the learned Magistrate considered that there was no serious threat to the safety or welfare of the officers or the institution. The recording is then again indistinct but, in response to a further submission from counsel for the complainant, the learned Magistrate said that he was relying on s 19B(1)(c) and as a consequence his Worship dismissed both charges without recording any conviction.
From those two orders the complainant now has brought an application for leave to appeal against sentence which is dated 13 September 2002. The sentence having been imposed, or rather the disposition of the charges having been dealt with, on 5 August 2002, this application is outside the 21‑day period for the institution of an application for leave to appeal and hence the applicant also seeks an extension of time within which to appeal. Both those applications have been fully argued before me today on notice to the respondent, who has appeared and made opposing submissions through counsel.
The original proposed grounds of the application for leave to appeal, while still formally before the Court, are grounds which the applicant, if leave were to be granted, would seek to have amended. A minute of proposed amended application for leave to appeal against sentence with the amended grounds and dated 10 March has been put before me today. Against objection by counsel for the respondent, I have allowed the application for leave to appeal and for an extension of time to be argued on the basis that, if leave is granted, the proposed grounds will be amended to coincide with this minute, reserving the question of whether or not any formal amendment should occur until after my decision on the question of whether or not to extend time and grant leave. I have done this on the basis that the applicant should have the opportunity to argue for leave to appeal on all the grounds which he would seek to present in the best formulation of those grounds which the applicant desires to put before the Court.
Essentially, the grounds in support of the application for leave to appeal against sentence are, that in giving his reasons for decision, the learned Magistrate failed to address specifically, if at all, the express requirements of s 19B(1)(b) of the Crimes Act which condition the ability of a court to dismiss a charge without recording a conviction in such circumstances and that thereby there was an error in the implementation of the discretionary judgment of the learned Magistrate to dispose of the complaints in the way that he did.
It is important that the precise nature of the alleged error by the learned Magistrate be identified because it has a material bearing on the questions of whether or not time should be extended or leave to appeal granted. The first step in this process is to record the obvious fact, acknowledged by the complainant both before the learned Magistrate and again at the hearing of this application, that disposition of these charges under s 19B(1)(c), that is dismissal without recording a conviction, was an avenue open to the learned Magistrate in the circumstances of these particular charges, so that it was, therefore, legally competent for these charges to be dealt with in the way in which they were dealt with.
Appreciation of that factor leads to the next significant feature of the case and it is that to support an arguable case to appeal against sentence successfully in this case it must be demonstrated that the discretion of the learned Magistrate in disposing of these charges in the way he did miscarried. This might be done by showing either a demonstrable error of law, such as applying a wrong legal principle or because the result is of such a character that, in the absence of some express error in the exercise of his discretion it is explicable only on the basis of some undisclosed error. It might also be shown if there has been some factor wrongly taken into account in the decision to dispose of the charges in the way in which they were, or that some material factor which should have been taken into account was not taken into account by the learned Magistrate.
Unless factors of that character can be identified, there is simply no basis to impugn the discretion of the learned Magistrate and it is quite insufficient to support an application for leave to appeal to contend that it could or should have been disposed of on some other footing in the absence of some apparent or deduced error in the way the learned Magistrate dealt with the case.
These appreciations lead directly to the provisions of s 19B of the Crimes Act which, materially, provide as follows:
"(1) Where
(a)a person is charged before a court with an offence against the law of the Commonwealth; and
(b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, cultural background, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)dismiss the charge or charges in respect of which the court is so satisfied; ... "
Then follow a number of other alternatives which did not need to be addressed in this case. Reduced to its essential components, the arguments raised in support of the application for leave to appeal and to extend time by the applicant contends that the learned Magistrate failed to have regard to any of the three characteristics identified under s 19B(1)(b) and, further or alternatively, that, if he did have regard to any of them, he failed to identify the characteristics which he relied upon when he gave his reasons for decision and, furthermore, that in the process he failed to participate in what is said to be the two‑stage process which conditions the application of this method of dealing with a charge.
Before attending to the details of those submissions and the arguments which they produced, it is necessary for me to go back to mention the application to extend time within which to seek leave to appeal. The circumstances as they are revealed in the affidavit evidence before the court were that counsel for the complainant was, as I have already indicated, present before the learned Magistrate and made submissions when the charges were dealt with. It was counsel for the applicant (complainant) who asked for express reasons to be given by the learned Magistrate for the Magistrate's decision to employ the option conferred by s 19B(1)(c).
It follows that the applicant (complainant) had immediate access to legal advice about the significance of the disposition of the charges which had been made by the learned Magistrate. Furthermore, the complainant was brought through the office of the Commonwealth Director of Public Prosecutions and the application for leave to appeal has been similarly conducted. I consider that the only conclusion that I can draw from these circumstances is that the applicant (complainant) and his legal advisers were on notice, from the instant that these orders were made by the learned Magistrate, of the nature and consequences of the orders and, being experienced legal practitioners and officers of the Commonwealth familiar with prosecutions of this nature, were also aware of the avenues of appeal conferred by the Justices Act and the existence of the 21‑day time limit for the institution of an appeal. Indeed, there has been no suggestion to the contrary at any stage of this application.
However, by what is plainly a deliberate process the applicant (complainant) declined to institute any application for leave to appeal within the 21‑day time limit, preferring to wait until a transcript of the proceedings before the Court of Petty Sessions in Broome was available and, having become available, had been considered by senior officers in the Canberra office of the Director of Public Prosecutions.
Admittedly, there was some delay in obtaining a tape recording of the proceedings in the Broome Court of Petty Sessions, transferring that to Perth, finding it after some bureaucratic loss, then securing the transcript and later in having the materials considered by the Commonwealth officers. So it was that this application for leave to appeal was filed some 18 days out of time. It should have been filed not later than 26 August but was in fact filed on 13 September 2002.
Counsel for the respondent opposes the application for an extension of time, pointing out the existence of the time limit and submitting that in an application for leave to appeal of this nature where the only issue is whether or not the disposition of the charges, after a plea of guilty, sufficiently reflected the gravity of the offences, that it was unnecessary to await the reception of a transcript before instituting the application for leave to appeal. The respondent submits that an application could have been instituted within the time limit available. If necessary, it could have been made the subject of an application for leave to amend in the unlikely event that that was necessary once the transcript came to hand. As I have said, I am dealing with the application in the footing of a foreshadowed amendment to the proposed grounds of appeal made only more recently still. It seems to me that there is merit in those submissions because, as I observed during the course of argument, the time limit for instituting an application for leave to appeal is from the date when the decision is given, not when the papers become available.
Counsel for the applicant and the respondent have each referred to the decision of the Full Court of the Supreme Court of Victoria in the case of R v O'Keefe [1979] VR 1, on the issue of whether or not time should be extended. Reference has been made to a passage in the joint judgment of McInerney, Menhennitt and McGarvie JJ at p 4 that where there is an application for leave to appeal by the Crown and the time for giving notice of appeal has elapsed a respondent, namely, the person sentenced, has an interest in the order or judgment of the court that the applicant seeks to impugn and that this interest ought not to be disturbed unless there is good reason for doing so. Their Honours then go on to identify the principles governing an application for extension of time for appealing, taking a résumē from the judgment of Gowans J in R v Darby, unreported; Supreme Court of Victoria; 2 May 1975 (as follows):
"(1)the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2)extension of the time is a matter for the discretion of the Court and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3)rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4)the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5)it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6)a reasonably satisfactory account of a failure to comply with the statutory requirements needs to be forthcoming."
I should add that in O'Keefe's case there was a delay of some three months after the expiration of the time limited for appealing before the application was made but in the end it was decided that, because of the particular features of the individual case, the extension should be granted, as it was. This present case involves a much shorter delay, as I have indicated, but the considerations referred to in O'Keefe's case are nonetheless pertinent.
The special features of an appeal by the Crown either against conviction or against a sentence imposed have been the subject of notice more recently in several cases, in particular in Bond v R (2000) 201 CLR 213, and in the train of authority which led to the successful appeal in Bond's case which is mentioned in the judgments in that report. This was noticed by the Court of Criminal Appeal of this Court in the unreported case of R v McDonald [2000] WASCA 336, where in the joint judgment of Pidgeon, Wallwork and Parker JJ at [25] is the following passage:
"There are, however, further material considerations which tell against the exercise of discretion to grant an extension of time in the present case. The first is the factor of double jeopardy. This has been recently referred to again by the High Court in Bond v The Queen (2000) 74 ALJR 597 at 602 [27] where the court said that appeals against an alleged inadequacy of sentence have 'long been accepted in this country as cutting across the time‑honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed'. Their Honours went on to say, in that case, that although such a jurisdiction has now become common place, in this country and elsewhere in the common law world, it is a jurisdiction the exercise of which is attended by some restraints. It is, therefore, an exceptional jurisdiction and in a class somewhat different from that of an appeal against sentence by a convicted offender." (Compare the decision in Dinsdale v The Queen (2000) 202 CLR 321.)

Also on the question of the extension of time there is the decision of the Court of Criminal Appeal of this State in the case of R v Jensen (1991) 52 A Crim R 279 where in the judgment of Pidgeon J, with whom the learned Chief Justice agreed, there is the following passage:
"During the course of the hearing the Chief Justice pointed out there was need for an affidavit from the solicitor, who then had conduct of the matter, explaining why he came to the conclusion that it was not necessary to take any step to preserve the applicant's rights. His Honour stated further that it is the responsibility of solicitors to lodge the necessary application pending the resolution of any question about whether legal aid will be available, or whether the grounds might be fully available, or whether the appeal was going to proceed and his Honour said that there was no justification for doing nothing. The notice could be lodged pending obtaining advice from counsel. The Court, after hearing further submissions, expressed the view that as the application was not made until nearly four months after the time had expired it was on the same footing as Nicolakis (unreported, Court of Criminal Appeal, WA, No 38 of 1988, Library No 7184, 30 June 1988). This summarised the previous authority on the matter and confirmed that where there has been lengthy delay not properly explained or justified an extension of time will not be granted unless it is demonstrated that there will be a substantial miscarriage of justice. The Court therefore ruled that for the above reasons there was no proper explanation for the delay and it would be necessary to show that there would be a substantial miscarriage of justice. In order to determine this question, it is necessary to examine the merits of the proposed appeal against conviction."
While the delay in this particular case is shorter than in the two examples in the authorities from which I have read, the principles are nonetheless pertinent and, having regard to the fact that it is a proposed prosecution appeal, the rigour with which the time limit should be enforced is greater.
It seems to me in this case that there is really no satisfactory explanation for the failure to institute the application for leave to appeal before the expiration of the period. I conclude that the explanation of waiting for the transcript to arrive is, in the circumstances of this case, an inadequate one. But the whole question of whether or not there should be an extension of time is intimately connected with the merits of the proposed appeal and therefore, although it seems to me that the case in support of the claim for an extension of time is, at its best, a weak one, it cannot be resolved without looking at the prospects of the proposed appeal and it is to that subject that I now return.
What the submissions before me today have established is that the question of the application of s 19B(1)(c) or other alternative means of dealing with the respondent under that section were paramount in the submissions of counsel who appeared before the learned Magistrate and in the attention of his Worship himself at the time when these orders were made.
Although it is clearly possible to give instances where express reference to s 19B(1)(c) were made in the transcript, the number of these make it perhaps inconvenient and tedious to carry out the process. But it is plain beyond any dispute that this topic was a focus of attention in the written submissions and in the course of oral submissions before the learned Magistrate. The written and oral submissions make it equally plain that the essential ingredients or stages or tests for the application of those options were drawn to his Worship's attention.
I can give a few examples. At page 9 of the transcript before the learned Magistrate on 5 August 2002 there is a passage where counsel for the applicant (complainant) said as follows:
"More generally, with respect to my friend's application for a section 19B release order, I state, your Worship, that the discretion on whether to grant a section 19B bond comes into existence if the court is satisfied that the charge is proved and is of the opinion that it is inexpedient to inflict any punishment or to inflict any punishment other than a nominal punishment."
There is an interruption and counsel goes on:
"The court must consider the seriousness of the offence and whether the need for deterrence overrides the factors personal to the defendant."
Then counsel goes on to reply:
"Section 19B - there must be something which distinguishes the conduct from the usual circumstance. The provision is designed to penalise and there must be unusual factors personal to the defendant."
There was also express reference by counsel for the applicant (complainant) to the decision of the Court of Criminal Appeal of New South Wales in Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 which refers to the application of the discretion under s 19B of the Crimes Act consisting of two stages. Counsel for the applicant (complainant) went on to submit that whilst there was no dispute that the procedure laid down in that decision is an appropriate means by which to decide whether to make a s 19B release order, the issue of whether Mr Hussain should be relieved of the consequences of a conviction should be weighed against other considerations set out in s 16A(2) of the Crimes Act.
An outline of the submissions on sentencing was supplied by counsel for the applicant (complainant) to the learned Magistrate and all the factors, which it is now submitted were either overlooked or not addressed by the learned Magistrate in his reasons, were raised with the learned Magistrate by counsel appearing for the applicant on that occasion. At the end of these very comprehensive submissions, based as they were on the written submissions I have already mentioned, his Worship said, as I have indicated, that he had considered all sentencing (presumably meaning sentencing options):
" ... and I consider that I have sufficient material before me to apply in each case section 19B(1) and therefore no conviction will be recorded."
and his Worship disposed of the matters on that basis. It was after the decision was given when he was asked to state the reasons that the reasons which I have previously read were then announced.
It is submitted for the applicant that the learned Magistrate has failed to participate in the two-stage process. The two‑stage process is, first, to determine whether or not the court was satisfied, having regard to the three characteristics, that it was inexpedient to inflict any punishment so requiring the court to consider whether or not any of the three characteristics in fact existed and then, secondly, if any one or more did, and for that reason, to determine whether it was inexpedient to inflict any punishment.
Having read the transcript of the learned Magistrate's dialogue with counsel and his Worship's reasons for decision I have no doubt that the learned Magistrate was of the opinion that it was inexpedient to inflict any punishment and that he was satisfied of that circumstance by reason of the matters which had been addressed in the course of the submissions which he had heard. However, counsel for the complainant submits that the reasons which his Worship gave when called upon, do not correspond with the characteristics identified by the statute. The statutory characteristics, again, being the character, antecedents, cultural background, age, health and mental condition of the person, the extent to which the offence is of a trivial nature or the extent to which the offence was committed under extenuating circumstances.
It is clear that the learned Magistrate had heard and considered submissions dealing with each of those characteristics and the reasons which he gave can only be considered on the basis that they are abbreviated references to what he had heard to that point. I do not consider that the language used by the learned Magistrate can reasonably be regarded as revealing any omission or disregard of the essential characteristics.
Counsel for both the respondent and for the complainant have referred, in this regard, to the decision of this Court in Fleming v R (1997) 25 MVR 75 which involved a sentencing appeal arising from a conviction for causing death as a result of dangerous driving. One of the issues in that appeal was whether or not the learned Magistrate had failed to consider relevant circumstances because of the absence of an express reference to the circumstances in his sentencing reasons.
In that regard Franklyn J said, at 78:
"He made no express mention of the applicant's plea of guilty at the first opportunity in the District Court, or of his cooperation with the police, but it is clear from the papers, in my opinion, that they were not overlooked. Applicant's then counsel had devoted considerable attention to explaining to his Honour why there had not been an election under s 59(1) of the Road Traffic Act 1974 to have the matter dealt with summarily, as was said to have been his initial wish. Further, that the applicant had pleaded guilty at the first opportunity before the District Court, having advised the Director of Public Prosecutions in writing in April 1996 that he would so plead. It is unrealistic to assume that his Honour overlooked those matters."
Again, in his Honour's reasons for judgment at 79 it is said:
" ... as [the learned Judge] made no express mention of the provisions of s 17A(4) of the Criminal Code, he failed to take that provision into account. That submission ignores the presumption that a judge has exercised his jurisdiction in accordance with the law. It is not necessary that a sentencing judge make express mention of statutory requirements to be taken into account in exercising a discretion and, specifically, in sentencing. The failure to take the same into consideration must be demonstrated. In the absence of error or failure made obvious by sentencing remarks, this is usually demonstrated, if at all, in the sentence itself."
In the present circumstance I consider that a fair reading of the transcript of the hearing before the learned Magistrate at the time of sentencing reveals that all the relevant factors were raised for his Worship and that his Worship's attention to the relevant authorities was clearly drawn. There was no suggestion that there was any misunderstanding or lack of appreciation of those principles.
That being the case I do not see that there is any arguable basis for contending that the learned Magistrate overlooked the importance of the three statutory characteristics which I have mentioned. However, that is not the end of the case for the applicant. The applicant submits that the language used by his Worship when giving reasons for the disposition of the complaints under s 19B(1)(c) - that shows that factors relied upon did not correspond with the statutory factors. There again I am unable to accept that submission.
His Worship said, "I have heard the submission for the defence", in terms which imply that he accepted those submissions. His Worship went on to say, "The offences are on the very lower end of the scale," which I take to be an allusion to the extent to which the offence was of a trivial nature within s 19(1)(b)(ii). His Worship rejected submissions made by the complainant to the effect that the nature of the offences were graver than submitted by the respondent. His Worship considered that the defendant had cooperated with the authorities and had pleaded guilty at the first opportunity. There is some controversy as to the meaning of "cooperating with the authorities" but there was material before the learned Magistrate that indicated that there was a substantial degree of cooperation by participating in an interview, where there was no obligation to do so. Although what was said in the interview did not prove helpful to the authorities, the situation quickly changed with the plea of guilty. All those are factors which appear to me to bear on the character of the respondent.
It has also been submitted to me by counsel for the respondent at the hearing of this appeal that there were references to the personal antecedents of this respondent, namely, that he was a refugee who had come to Australia, was detained in a refugee centre but had been identified as a refugee within the Geneva Convention and so became entitled to a refugee visa in Australia. His cultural background was one of a person who had been subjected to persecution, or a realistic fear of persecution. Those too are factors which appear to me to come within s 19B(1)(b)(i) and satisfy the statutory characteristics.
That is enough, perhaps more than enough, to indicate that both by inference and expressly, the learned Magistrate had regard for the statutory criteria, reached a conclusion that it was inexpedient to inflict any punishment because of those criteria and so dismissed the charges without recording a conviction.
It having been conceded that his Worship had the power to do this, the only issue is whether there is an arguable case that in exercising that power, his discretion miscarried. For reasons which I have given I do not consider that there is any arguable basis to contend that the discretion miscarried. The fact that the complainant considers that the matter should have been dealt with another way does not demonstrate or raise any arguable error of discretion.
This was a matter for decision by the responsible judicial officer dealing with the case. His Worship was directed to the relevant law and authorities; he made a decision which was within his statutory powers, after adverting to the relevant criteria. Accordingly, I do not see any basis upon which it can reasonably be argued that there was an error in the exercise of the sentencing discretion and in view of that conclusion I do not see that there is any justification for an extension of time. I propose therefore to refuse the extension of time which is sought, for the reasons previously mentioned, and also on the basis that no arguable case for leave to appeal has been shown.