Ashton v Police - [2005] SASC 460

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ASHTON v POLICE
Judgment of The Honourable Justice Debelle (ex tempore)
29 November 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against conviction – appellant pleaded guilty to two summary offences – whether good reason not to record conviction - agreed facts - whether appellant likely to commit like offences - held, good reason not to record conviction – appeal allowed.
Summary Offences Act 1953 s 7, s 51; Criminal Law (Sentencing) Act 1988 s 16, referred to.
Crosby v Police [2002] SASC 213; Sims v Police (2000) 30 MVR 524, not followed.
R v Yousef [2005] SASC 203, considered.

ASHTON v POLICE
[2005] SASC 460
Magistrates Appeal: Criminal

DEBELLE J. This is an appeal against conviction.
On 6 September 2005, in the Magistrates Court at Mount Gambier, the appellant pleaded guilty to throwing, without reasonable cause, a missile so as to be likely to frighten a person contrary to s 51(1) of the Summary Offences Act1953. The missile was a glass tumbler. The magistrate convicted the appellant and fined him $500. The appellant was also charged with behaving in a disorderly manner in a public place contrary to s 7(1)(a) of the Summary Offences Act. A conviction was recorded in respect of that count, but no penalty was imposed.
The appellant appeals against the recording of a conviction on both those charges.
The prosecution and the appellant had agreed the relevant facts. The offending occurred in this way. At about 12.30 am on Sunday, 15 August 2004 the male victim was dancing on the ground floor of a nightclub in Mount Gambier. He had just finished dancing when a glass, which had been thrown from the upstairs balcony, landed near him. He looked up to the balcony where he saw three males. One of those males pointed to the appellant. The victim went up to confront the appellant. A scuffle ensued between them and bystanders subsequently broke up that scuffle. The victim reported the matter to the police, who later interviewed the appellant.
The appellant immediately admitted throwing the glass from the balcony of the nightclub. He said that he did not know why he threw it and that he did not deliberately throw it towards the victim. At the hearing before the magistrate, the appellant was represented by counsel who said that the appellant still did not know why he had thrown the glass. The appellant believed that he had probably thrown it out of frustration as he had lost his employment about two weeks before.
It was submitted to the magistrate that no one was endangered and no one might have been frightened by the glass having been thrown. Counsel for the appellant also then submitted that a conviction should not be recorded. He submitted that the appellant was aged 24 and was a timber mill worker who could pay a moderate fine. The appellant had, by the time of sentencing, regained employment. He had no previous convictions. He submitted that the magistrate should exercise his discretion under s 16 of the Criminal Law (Sentencing) Act1988 (“the Sentencing Act”) not to record a conviction as the appellant was unlikely to offend again and was of good character.
It is to be noted that the complaint, as drawn, stated that the appellant “without reasonable cause threw a missile, namely a glass, so as to be likely to injure a person”. At the hearing the complaint was amended so as to read that the appellant “without reasonable cause, threw a missile, namely a glass, so as to be likely to frighten a person”. The amendment reflected the facts which had been agreed between the appellant and the prosecution. As was emphasised today by Mr Smith, who appeared for the appellant, the agreed facts did not suggest that there was any danger to those below and no submission was made to that effect by the prosecution.
On the question whether a conviction should be recorded, the magistrate said:
The defendant is entitled to credit for his plea of guilty as he is for having no prior record. Having said that though, I am asked not to record convictions. I want to make it crystal clear that the defendant’s behaviour was dangerous, in a public place, that is the Shadows Nightclub. Fortunately as the charge has been amended, no one was injured but as the charge has [sic] amended is, “Frighten” and that is exactly what has happened here. I say that because I am asked not to record a conviction. I form the view that I must record a conviction given the seriousness of this defendant’s irresponsible behaviour.
On the submissions of Mr Smith, clearly the defendant acknowledges he has acted irresponsibly. He has redeemed himself to a large extent by pleading guilty and as I say he has no prior record. So it is for this defendant, inappropriate behaviour but dangerous behaviour where I must record a conviction and I make that crystal clear.
All due allowance must be made for the fact that these were ex tempore remarks made by a magistrate in the course of despatching a busy list. However, it does appear from these sentencing remarks that the magistrate has erred in two respects. First, he has classified the appellant’s behaviour as dangerous. It had been submitted to the magistrate that the appellant had looked before throwing the glass and did not intend to hit anybody. The appellant believed that he was throwing it into an area which was vacant at the time. The magistrate is, of course, entitled to form a conclusion as to the facts which differs from the submissions which are made. However, in my view, the magistrate has formed a view of the seriousness of the offending which is not justified by the facts. The glass was thrown into an empty space on to the dance floor, admittedly near the victim. However, it was thrown on to an empty part of the dance floor.
Even if I am wrong in that view, there is the second and more significant error which the magistrate’s remarks suggest has been made. The magistrate has failed to address the question whether the defendant was unlikely to commit such an offence again. That is the first matter which must be determined when considering an exercise of discretion conferred by s 16 of the Sentencing Act. It is a prerequisite to proceeding to consider the other matters listed in s 16(b). The magistrate has not addressed the issue at all and his failure to do so justifies this Court in exercising the sentencing discretion afresh. In reaching this conclusion I repeat that I have regard to the fact that these are ex tempore remarks made by the magistrate.
It was submitted to the magistrate that the appellant was of good character. He had no prior convictions and was in employment at the time when he was before the court. It is apparent that he is a person who prefers to be in employment. That is evident from the fact that this offending seems to have arisen out of frustration at losing employment. There is a degree of force in Ms Connell’s submission that there was little firm evidence before the magistrate to demonstrate the good character of the appellant. As a general rule, evidence of good character should be provided in a form other than bare submissions from the bar table. However, that is not a difficulty in this case.
Ms Connell also relies on the decisions of this Court in Sims v Police (2000) 30 MVR 524 and in Crosby v Police [2002] SASC 213 where it has been held that the assumption behind s 16 is that in most cases a conviction will be recorded. With respect, I do not share that view. Section 16 imposes a discretion on the court not to order a conviction where the criteria listed in s 16 have been established to the satisfaction of the court. To suggest that the assumption behind s 16 is that in most cases a conviction would be recorded is, I think, to fetter the discretion of the court in a way unintended by s 16. The lists in Magistrates Courts often include matters which do not rank high in the scale of criminality and there will be occasions when it is appropriate for a magistrate to impose a penalty or release an offender on a bond without recording a conviction. It is inappropriate to seek to list the kinds of circumstances when it would be in the proper exercise of the discretion to release an offender without conviction. Such is the variety of offending and the variety of offenders that the task would be futile. Plainly each case must be considered on its own circumstances.
It is appropriate to add that I do not accede to the submission which was made by Ms Connell that the discretion vested in a court by s 16 is more likely to be exercised in favour of persons who are young or who are about to embark on careers. It was suggested that, as the appellant was 24 years old, he is not deserving of an exercise of the discretion under s 16.
In this State a conviction has a permanent operation. There is no legislation as there is in other places to wipe a person’s record clean after a period of years. A conviction can be a stigma when obtaining employment and, as noted in R v Yousef [2005] SASC 203, may even be a bar to obtaining an entry visa to certain countries. The appellant was aged 24 years. It is quite possible that in the future he might have to seek employment in another occupation, or he may seek to better his position and obtain employment in an occupation other than as a sawmill worker. He may be required to disclose the conviction. The age of the offender is not, therefore, necessarily a bar.
To return to the issues in s 16. In my view, this defendant has demonstrated he is unlikely to commit these offences again. The first count represents an unusual, if not bizarre, offence. It was spontaneous offending which did not have the degree of danger to which the magistrate referred. The disorderly behaviour was a consequence of the victim grappling with him. It is necessary, therefore, to consider the criteria in para (b) of s 16. The appellant is of good character. He has no prior convictions. He is still relatively young and his future prospects of employment remain before him in this or in other employment. Although the offending could certainly not be described as trifling, it was, on the other hand, not so serious to preclude an order being made under s 16.
For all of these reasons, I find that the magistrate erred in the exercise of the sentencing discretion. That entitles me to exercise the sentencing discretion afresh. For reasons already given, I conclude that the defendant is unlikely to commit this offence again and good reason exists for not recording a conviction. The order of the court will therefore be:
1.Appeal allowed.
2.Vary the order of the magistrate made on 6 September 2005 by deleting that part of the order which records a conviction in respect of the two offences to which the appellant had pleaded guilty. In all other respects, the order of the magistrate stands.
3.There will be an order that the respondent pay the appellant’s costs which I fix in the sum of $150 plus the out-of-pocket expenses for lodging the notice of appeal.