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 has also quashed convictions for first offenders for possession of cannabis. It is very much a matter of assessing each individual case.
I am told the defendant was a heavy user of cannabis at the time. I am told he has now amended his ways. Some may view that once a cannabis user, always a cannabis user. Indeed, the chances are very strong that he may commit this offence again.
[T]he defendant will be convicted and fined a sum of $250 plus Court fees, the levy and prosecution costs. The cannabis and equipment are to be forfeited.
On the appeal, the appellant complains only of the recording of the conviction and the Magistrate’s omission to invoke s 16 of the CLSA.
An appellate court will interfere with the discretionary judgment involved in sentencing in only limited circumstances. It is not enough that the Court itself may have taken a different view had it been sentencing the appellant at first instance. An appellant must establish an identifiable error by a Magistrate, such as proceeding on a wrong principle or failing to take into account a relevant consideration, taking into account an irrelevant consideration or, if none of those matters can be established, by showing that the sentence is so plainly unreasonable or unjust that it should not be allowed to stand.
In the present case the appellant relied upon three matters. First, that the prosecutor appearing before the Magistrate had made submissions opposing the matter being disposed of without the recording of a conviction. That submission did not accord with the attitude which a different prosecutor, with whom the appellant’s solicitor had negotiated the basis for the plea, had agreed would be taken by the prosecution. The error occurred because of an innocent omission in the instructions to the prosecutor who appeared before the Magistrate.
Secondly, the appellant contended that the Magistrate had denied him procedural fairness by not alerting his counsel during the course of sentencing submissions to his intention to sentence on the basis that there was a strong chance that the appellant may commit the offence again. Thirdly, the appellant submitted that there was, in any event, no basis for the Magistrate’s conclusion that there was a such strong chance.
On the appeal, counsel for the respondent has, quite properly and fairly, conceded the merit of the first and third of those complaints and accepts that there may have been a denial of procedural fairness. The respondent also accepts that it is appropriate for this Court to exercise afresh the sentencing discretion with respect to the recording of a conviction.
I consider that the respondent’s concessions are appropriate and that the appeal should succeed, but it is necessary that I state my reasons for upholding the appeal.
The prosecution was not, of course, bound to make any submission at all on the question of whether or not a conviction should be recorded. Further, even if the prosecution had made a submission to the Magistrate accepting that the matter could be finalised without a conviction being recorded, the Magistrate had nevertheless to exercise his own independent judgment about whether or not it was appropriate to proceed in that way. He was not bound to act in accordance with the prosecution attitude.
Doyle CJ stated the relevant principle in R v Nemer[1] in the following terms:
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest … .The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director's attitude to a given case a matter that should influence the court … . The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process. As Mason CJ, Brennan and Gaudron JJ said in Malvaso (at 233):
The court's sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea bargaining agreement.[2]
(Citations omitted)
[1] [2003] SASC 375; (2003) 87 SASR 168.
[2] Ibid at [28], 173.
So, in short, the position is that the Magistrate would not have been bound by the agreement reached between the appellant’s solicitor and the prosecutor, even had he been informed of it.
However, the proper administration of justice is assisted by sensible and proper discussions between the prosecution and defence counsel. Such discussions will often result in agreement as to the basis upon which a plea of guilty will be made. Any such agreement must, of course, be consistent with the factual circumstances of the offence and the personal circumstances of the offender, but, as I have said, an appropriate agreement can facilitate the course of justice. It will obviate the need for the court to resolve disputed questions of fact and will facilitate the court reaching an appropriate sentence in the circumstances of any given case.
In the present case, the Magistrate was not, by reason of an innocent mistake, informed of the true attitude of the prosecution to the recording of a conviction. In fact, as indicated, the Magistrate was, I emphasise innocently, misled as to the attitude of the prosecution in that respect. Accordingly, the Magistrate was deprived of some of the assistance which would otherwise have been available to him in reaching an appropriate sentence. So, for that reason, I consider that the first complaint of the appellant should be upheld.
It is not necessary for me to express a final view about whether or not the appellant’s complaint of a denial of procedural fairness should be upheld. The Magistrate was not bound to inform the appellant’s counsel before sentencing of the view he took about the submissions which had been made on the appellant’s behalf. There is no obligation on a sentencing Judge or Magistrate to give some sort of running commentary on the submissions concerning sentence which have been made to him or her.
King CJ made this plain in R v Perre[3] in the following passage:
There seems to be a misunderstanding abroad as to the respective roles of the Judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the Judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A Judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the Judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence or even concurrence, of counsel for the prosecution, nor the silence of the Judge, will entitle counsel for the defence to assume that the Judge will sentence upon the basis of his submissions.[4]
[3] (1986) 41 SASR 105.
[4] Ibid at 106.
There is nothing in the materials to suggest that this case fell within one or other of the exceptions to which King CJ referred.
However, there is some force in the appellant’s submission that, if a Magistrate proposes to sentence on the basis of a conclusion of fact or an assumption about a factual circumstance which has not been disclosed in the material put before the Magistrate and which cannot be regarded as a matter of general knowledge or experience, the Magistrate should alert both the prosecution and defence counsel to that possibility and give them an opportunity to make submissions about it. It appears that in the present case the Magistrate infringed that principle. But, as I say, it is unnecessary to express a concluded view about that.
I do consider that the appellant’s third submission on appeal has merit. The Magistrate went beyond rejecting counsel’s submission that the appellant was unlikely to commit the offence of possession of cannabis again and instead made the positive finding that “the chances are very strong that he may commit this offence again”.
There was nothing in the material or submissions relating to the appellant to warrant that conclusion. The Magistrate’s statement, “some may view that once a cannabis user, always a cannabis user” suggests that he may have been applying some kind of universal principle, but there was no empirical evidence before the Magistrate for such a principle. The Magistrate may have been referring to some kind of rule of thumb, based on experience, that there is a high level of recidivism in the offence of possession of cannabis. If so, the material upon which the Magistrate relied for that rule of thumb is not known.
Further, and perhaps fundamentally, even if it be true that a majority of those persons who commit the offence of possession of cannabis will commit the offence again (about which I express no conclusion), that by itself says very little about the probability of a particular defendant reoffending. King CJ referred to the limitations of evidence of statistical probabilities as a means of proof in SGIC v Laube[5] when he said:
I am clearly of the opinion that the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof, on the balance of probabilities, that the proposition is true of any given individual. The fact that most people with a blood alcohol content of 0.15 per cent are incapable of exercising effective control of a motor vehicle does not establish against any individual with that blood alcohol level that that individual is so incapable.[6]
Those observations were, of course, made in a context which is quite different from the present. However, they do underscore the need for caution when applying rules of thumb or propositions of general application derived from statistical facts or, as may have been the case in the present instance, from perceptions of statistical facts.
[5] (1984) 37 SASR 31.
[6] Ibid.
For these reasons I am satisfied that the Magistrate’s sentencing discretion miscarried and that it is appropriate for this Court to resentence.
The circumstances of the appellant’s offence are of short compass. On 21 January 2011 the police attended at the appellant’s home and executed a search warrant. They found 32 grams of cannabis as well as some of the paraphernalia associated with the processing of cannabis.
The appellant admitted his possession of the cannabis and of the paraphernalia and said that most of the cannabis was for his own use. He declined to answer questions as to the source of the cannabis.
At the time of the offence the appellant was 19 years and two months old. He was part way through an apprenticeship as a carpenter. It was put to the Magistrate, and has been repeated in the submissions to this Court, that his arrest and the resulting proceedings have been a salutary lesson for him and that they have had a profound affect on him. The Magistrate was told that the appellant has ceased use of cannabis altogether. The prosecution did not contest that submission.
It is not necessary to recite the terms of s 16 of the Criminal Law (Sentencing) Act 1988 (SA). As is well known, it vests in sentencing courts a discretion not to record a conviction when the court considers that the defendant is unlikely to commit the offence again, and when it considers, amongst other things, that having regard to the character, antecedents, and age of the defendant, there is good reason not to record a conviction.
As has been said on a number of occasions, s 16 reflects an assumption that ordinarily a conviction will be recorded on a finding of guilt. A court may refrain from recording a conviction under s 16 only when the criteria contained in that section are established. A court cannot refrain from recording a conviction as a matter of routine.
When considering the application of s 16, it is appropriate to keep in mind the purposes served by the recording of a conviction. In this respect I venture to repeat what I said in the case of R v McGaffin,[7] noting that the Chief Justice agreed with these reasons:
The recording of a conviction serves many purposes. First and foremost, it is the formal record of the adjudication of the offender’s guilt, and thus comprises a formal and public declaration that the person engaged in the charged criminal conduct. As such it forms part of the community’s denunciation and censure of the conduct and the community is entitled to expect, as the words of s 39 of the CLSA indicate that, unless there is good reason not to do so, convictions will be recorded. Secondly, the prospect that a conviction will be recorded forms part of the deterrent effect of a sentence. This is because the recording of a conviction can have a significant deleterious effect on an offender, and can act as a form of continual punishment.
As was pointed out by Sulan J in R v Lambert, after referring to the Queensland Court of Appeal decision in R v Breise, there are many employers and organisations in the community who refer to criminal records, whether to satisfy themselves of the absence of such a record, or as to the nature and extent of the record in a particular case. A requirement for a so-called “Police Check” is now commonplace, in particular for those who work with children, or who are involved in community activities involving children. As I understand it, a “Police Check” involves a certification by the police of a person’s criminal record.
(Citations omitted)
[7] [2010] SASCFC 22 at [81]-[82].
On the other hand, the recording of a conviction can in some cases have quite serious consequences later in life, whether in relation to employment or travel or in relation to membership of professional and trade associations.
In the present case it has to be said that the material before the Court indicating that the appellant is unlikely to offend again is slight. The appellant did not point to any particular steps which he had taken to rehabilitate himself. However, I consider it appropriate to take into account the appellant’s youth and immaturity at the time he committed the offence. It is reasonable to suppose that the effect of his arrest and of the prosecution has been salutary. The appellant must now appreciate acutely the adverse consequences for him if he chooses to offend again. Accordingly, and not without some hesitation, I am satisfied that the first condition for the enlivening of the discretion under s 16 has been satisfied.
I also consider that having regard in particular again to the appellant’s youth and immaturity, his blemish-free record, and therefore his good character, to date, there is good reason not to record a conviction.
Accordingly, 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.