BALDRY v CROWLEY - [2005] SASC 484

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BALDRY v CROWLEY
Judgment of The Honourable Justice Duggan
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Crown appeal against the decision of a Magistrate not to impose a conviction on the respondent for the offence of operating an ionising radiation apparatus without holding a licence, contrary to the Radiation Protection and Control Act 1982, s 31 - consideration of the application of s 16 Criminal Law (Sentencing) Act 1988 to regulatory offences - no error on the part of the magistrate in exercising the discretion was demonstrated - appeal dismissed.
Radiation Protection and Control Act 1982 s 31; Criminal Law (Sentencing) Act 1988 s 16, referred to.
El Sayed v Commissioner for Consumer Affairs (2002) 224 LSJS 99, applied.
Piva v Brinkworth (1992) 59 SASR 92, discussed.

BALDRY v CROWLEY
[2005] SASC 484
Magistrates Appeal

DUGGAN J. The respondent is an orthopaedic surgeon who was charged with operating an ionising radiation apparatus without holding a licence, contrary to s 31 of the Radiation Protection and Control Act 1982 (“the Act”).
He pleaded guilty to the offence. The magistrate determined not to impose a conviction. He fined the respondent $2,000 and directed him to pay court costs and counsel fees. The appellant, who was the complainant in the Magistrates Court, has appealed against the magistrate’s decision not to record a conviction.
The offence took place on 9 July 2004 at Flinders Private Hospital. The respondent was operating at the hospital during the morning. The second patient in his list was a 16 year old boy suffering from a broken wrist. There were three nurses and an anaesthetist in the operating theatre at the time of the operation.
The patient was anaesthetised, but a radiographer who was to x-ray the fracture, had not arrived by the commencement of the operation. Enquiries were made as to the whereabouts of the radiographer. The x-ray was to be carried out with the aid of an image intensifier which is an ionising radiation apparatus within the meaning of the Act. After waiting for approximately 15 minutes, the respondent moved the image intensifier into the theatre with the assistance of one of the nurses, plugged it into the electricity supply and turned it on. After he had manipulated the patient’s wrist, he pressed the button on the intensifier in order to produce an image which enabled him to determine that there was a satisfactory alignment before placing the patient’s wrist in plaster.
The Act regulates the operation of apparatus which produce ionising radiation and operators are required to undertake training in their use. The respondent did not have the appropriate licence, although he became familiar with the operation of x-ray machines, including this particular apparatus, over a period of approximately 15 years as an orthopaedic surgeon.
After the incident, the respondent was questioned by investigators attached to the Environmental Protection Authority Investigation Unit. The resulting record of interview was tendered at the sentencing hearing. In it, the respondent explained that he was put under some pressure by reason of the length of his list and the fact that three emergency patients had been added to the list on the previous evening.
The respondent told the investigators that it appeared to him he was waiting for an inordinately long time for the radiographer to arrive. Although he did not see any real danger in keeping the patient anaesthetised for a longer period of time, he did have some concern about the situation. He readily conceded that he should not have used the intensifier to take an image and he said that he had learnt a real lesson. He was aware that only licensed persons were authorised to operate the apparatus.
As it turned out, there was no actual danger to those present, including the patient. The hospital staff were wearing the appropriate protective clothing. However, it is clear that there are dangers in unlicensed persons operating the machine and it is also important to have regard to the concerns of hospital staff when an unauthorised person operates equipment in their presence, even if that person is a surgeon with experience through observing the relevant procedure.
Section 16 of the Criminal Law (Sentencing) Act 1988 provides for a discretion not to impose a conviction in the circumstances identified in the legislation. The section provides:
16    Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)    the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
There are a number of authorities which deal with the application of s 16 to regulatory offences. At the hearing of the appeal, counsel drew my attention to remarks I made in Piva v Brinkworth (1992) 59 SASR 92 at 96:
While it is true to say that the case possessed features such as the good character of the appellant which, in the case of certain offences, might lead to the application of s 16 or s 39, nevertheless it must be remembered that these matters are no more than conditions precedent to the exercise of the discretion given under the sections. They do not give an offender a right to such leniency (Cobiac v Liddy (1969) 119 CLR 257 at 276) and in considering the exercise of the discretion the court should have regard to the restricted application which they have in cases of regulatory and social legislation.
In the present case the court was entitled to give weight to the appellant's good character and his otherwise excellent attitude towards conservation of the environment. Such matters were relevant to the amount of any fine which the court might impose. But it was not in dispute that the two breaches were deliberate actions undertaken by the appellant in the knowledge that his conduct contravened the Act. When this aspect is considered along with the importance of general and individual deterrence in enforcing the relevant provisions, the use of the powers provided for in ss 16 and 39 of the Criminal Law (Sentencing) Act 1988 must be regarded as inappropriate in this case.
However, as Mullighan J pointed out in El Sayed v Commissioner for Consumer Affairs (2002) 224 LSJS 99 at [38], there will be cases when the discretion under s 16 may be exercised when dealing with regulatory offences.
It is not in dispute that the respondent is unlikely to offend again in this way. The only issue is whether there was “good reason” to justify the exercise of the discretion in the respondent’s favour by reference to the criteria in s 16(b).
The reasons of the magistrate were quite brief. However, the only issue of contention during the sentencing hearing was whether a conviction should be recorded. Both counsel addressed him on this issue and relevant authorities were cited.
In his sentencing remarks, the magistrate said that he had considered the submissions and the authorities. He found there was a proper basis for proceeding without recording a conviction. He said he took into account the fact that the respondent had no previous convictions and the circumstances of the offending.
There is nothing in the magistrate’s remarks or the proceedings generally to indicate that, in exercising the discretion in the respondent’s favour, he took into account some irrelevant matter or left out of account a relevant aspect. Furthermore, there is nothing in the circumstances of the case which would indicate that the exercise of the discretion miscarried because it was not open on material before the court.
The magistrate was entitled to have regard to the fact that this was an isolated and spontaneous breach carried out by the respondent when he was under the pressure which he described. Although the respondent was not licensed to use the apparatus, he was familiar with its operation and performed the procedure safely. These considerations do not excuse his breach, but it appears that the magistrate considered they provided good reason to proceed without recording a conviction. The fine imposed was appropriate to the circumstances of the case.
As it has not been demonstrated that the exercise of the discretion was in error, the appeal will be dismissed.