ARNOLD v Police - [2011] SASC 149

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ARNOLD v POLICE
[2011] SASC 149
Judgment of The Honourable Justice White (ex tempore)
12 September 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - DENIAL OF NATURAL JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to possession of cannabis - the Magistrate recorded a conviction and fined the appellant $500 - prior to the hearing the appellant had agreed the plea with a prosecutor on the basis that the prosecution would not oppose a request for the Magistrate to exercise his discretion to refrain from recording a conviction - due to a miscommunication the prosecutor made submissions opposing exercise of that discretion - the Magistrate concluded that the chances of the appellant re-offending were very strong.
Whether failure of Magistrate to inform appellant of factual basis on which he planned to sentence amounted to want of procedural fairness - whether Magistrate erred in drawing conclusion about appellant's prospect of re-offending without have regard to particular evidence.
Held: in the circumstances, the Magistrate was deprived of assistance in reaching an appropriate sentence - unnecessary to decide whether appellant accorded procedural fairness - caution must be exercised when drawing inferences based on statistical probabilities -the Magistrate erred in making factual conclusion in the absence of any evidence - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39; Controlled SubstancesAct 1984 (SA) s 33L(2)(a), referred to.
R v Nemer (2003) 87 SASR 168; R v Perre (1986) 41 SASR 105; SGIC v Laube (1984) 37 SASR 31; R v McGaffin [2010] SASCFC 22, considered.

ARNOLD v POLICE
[2011] SASC 149
Magistrates Appeal (ex tempore)

WHITE J. The appellant is a 19-year-old apprentice carpenter. He pleaded guilty in the Magistrates Court to the offence of possession of cannabis, a contravention of s 33L(2)(a) of the Controlled Substances Act 1984 (SA). The maximum penalty for that offence is a fine of $500.
The Magistrate recorded a conviction and imposed a fine of $250. The total amount to be paid by the appellant inclusive of court fees and levies is $718.
The principal sentencing submission made on the appellant’s behalf before the Magistrate was that the Magistrate should, by proceeding under either s 16 or s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), refrain from recording a conviction. The Magistrate rejected that submission. His reasons were quite brief and were as follows:
I take into account all that has been put to me, including personal factors put by your counsel.
The Supreme Court has endorsed convictions for first offenders for possession of cannabis. The Supreme Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ARNOLD v Police

Details

AGLC: ARNOLD v Police [2011] SASC 149
Case: [2011] SASC 149
Decision Date: 12 September 2011

CaseChat Overview and Summary

In the case of Arnold v Police, the appellant, Arnold, appealed against his sentence after pleading guilty to possession of cannabis. The Magistrate fined Arnold $500 and recorded a conviction. Arnold had agreed with the prosecutor that the prosecution would not oppose a request for the Magistrate to exercise discretion to refrain from recording a conviction. However, due to a miscommunication, the prosecutor made submissions opposing the exercise of this discretion. The Magistrate concluded that the chances of Arnold re-offending were very strong.

The legal issues in this case involved the right of appeal, particularly in cases involving error of law and denial of natural justice. The court also needed to consider whether the Magistrate erred in drawing conclusions about Arnold's prospect of re-offending without regard to particular evidence. Additionally, the court had to examine whether the failure of the Magistrate to inform Arnold of the factual basis on which he planned to sentence amounted to want of procedural fairness.

The court held that in the circumstances, the Magistrate was deprived of assistance in reaching an appropriate sentence. The court found it unnecessary to decide whether Arnold was accorded procedural fairness. It was emphasised that caution must be exercised when drawing inferences based on statistical probabilities. The Magistrate also erred in making a factual conclusion in the absence of any evidence. Consequently, the appeal was allowed.

The final orders of the court were to allow the appeal and set aside that part of the Magistrate's sentence which involved the recording of a conviction. In all other respects, the sentence of the Magistrate was confirmed.

Orders

Orders of the court

I allow the appeal. I set aside that part of the Magistrate’s sentence which involved the recording of a conviction but in all other respects the sentence of the Magistrate is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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