Brown v Police - [2017] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BROWN v POLICE
[2017] SASC 83
Judgment of The Honourable Justice Stanley
15 June 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY
Appeal against the recording of a conviction by a magistrate.
The appellant pleaded guilty to a charge of possession of a controlled drug, namely cannabis, intending to supply the drug, contrary to s 33I(2)(b) of the Controlled Substances Act 1984 (SA). The magistrate recorded a conviction, imposed a $900 fine and ordered the appellant to pay court costs, along with an associated forfeiture order.
The appellant instituted the appeal out of time on the basis that he was advised by his solicitor on 15 January 2014, being the day following sentence, that a conviction had not been recorded against him. It was not until he applied for a police clearance in September 2016 that he discovered a conviction had been recorded.
The parties made no submissions at first instance that a conviction should not be recorded. However, counsel for the appellant expressly invoked the provisions of s 39 of the Criminal Law (Sentencing) Act 1988 (SA) before the sentencing judge.
Held:
1. The approach adopted in Griffin v Police and Coyle v Police, that where no submission is made that a conviction should not be recorded a magistrate cannot be expected to turn his or her mind to the possibility, is sound. However, the rule should not be applied rigidly or inflexibly (at [21]).
2. The magistrate having addressed his mind to the power in s 39 of the Criminal Law (Sentencing) Act 1988 and having decided that a bond was not appropriate should have given consideration to whether to proceed to impose a fine without recording a conviction pursuant to s 16 (at [23] and [26]).
3. Having determined that an appealable error is established, the appellant is resentenced. It is appropriate that a fine be imposed. Good reason exists for not recording a conviction having regard to the appellant’s lack of prior criminal history, his stable employment history, his psychiatric illness, the steps taken by him towards rehabilitation and the likely impact of a conviction on him in future (at [36] to [38]).
4. An extension of time within which to institute the appeal is granted (at [39]).
Controlled Substances Act 1984 (SA) s 331(2)(b); Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, s 39; Magistrates Court Act 1991 (SA) s 42(4), referred to.
Police v Chilton [2014] SASCFC 76; House v The King (1936) 55 CLR 499, applied.
Griffin v Police [2005] SASC 337; Coyle v Police [2001] SASC 43, discussed.
Playford v Police [2017] SASC 26; R v Stubberfield (2010)…

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 Brown v Police

Details

AGLC: Brown v Police [2017] SASC 83
Case: [2017] SASC 83
Decision Date: 15 June 2017

CaseChat Overview and Summary

In the case of Brown v Police, the appellant appealed against a conviction entered by the magistrate, arguing that the magistrate erred in failing to consider whether the sentence could be imposed without recording a conviction. The court was required to determine whether the magistrate erred in law by not considering the application of sections 16 and 39 of the Sentencing Act, which permit sentencing without recording a conviction under certain conditions. The central issue was whether the magistrate should have considered proceeding without recording a conviction, given that no such request was made by the appellant’s counsel.

The court examined the circumstances under which a magistrate might consider sentencing without recording a conviction. It noted that while it is generally not expected for a magistrate to consider such an option in the absence of a specific request, there are exceptions. The court emphasised that the decision to record a conviction is an important aspect of the sentencing process, serving both as a deterrent and a marker of community condemnation. However, in cases where the impact of a conviction on the offender’s future could be disproportionate to the offence’s seriousness, the court may consider alternative sentencing options. In this case, the magistrate did not err by not considering these sections because the appellant did not request that the matter be dealt with under sections 16 or 39 of the Sentencing Act. The court allowed the appeal, set aside the conviction, and confirmed the other orders made by the magistrate. The parties were to be heard regarding the costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

STANLEY J

As the appeal is clearly arguable, I would extend the time within which to institute it. Conclusion I would extend the time within which to institute the appeal. I would allow the appeal. I would set aside the conviction. I would confirm the other orders made by the magistrate. I would hear the parties as to costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

The respondent submits that there was no relevant error committed by the magistrate. The magistrate was not asked to consider proceeding without recording a conviction. In these circumstances there can be no criticism of the magistrate for failing to do so. In any event, it is not apparent that the magistrate did fail to consider whether this was an appropriate case for proceeding without recording a conviction. The magistrate clearly considered the appropriateness of proceeding pursuant to s 39 of the Sentencing Act. It is implicit in the magistrate’s approach to the s 39 application that he considered whether it was appropriate to proceed without recording a conviction. Further, the magistrate having rejected the application of s 39 could only have proceeded without recording a conviction pursuant to s 16 of the Sentencing Act. This is not a case where s 15 could apply given it is not suggested that the offence was trifling. In those circumstances it was necessary for the appellant to satisfy the magistrate that the appellant was unlikely to commit such an offence again and that good reason existed for not recording a conviction. Those matters were not addressed before the magistrate. In these circumstances there was no need for the magistrate to consider the application of s 16. Finally, the respondent submits that in this case not only was it open for the magistrate to proceed by recording a conviction but it was appropriate to do so. Consideration In Griffin v Police[4] White J held that in circumstances where no submission was made to the court that an offender should be dealt with pursuant to s 16 of the Sentencing Act it is difficult to hold that a magistrate erred in failing to invoke a power which the offender, through his counsel, did not submit should be invoked.[5][4] [2005] SASC 337. [5] [2005] SASC 337 at [18]. In Coyle v Police[6] Olsson J held that absent a request that a magistrate proceed without recording a conviction there is no apparent reason why, in the normal course of sentencing deliberations, a magistrate could fairly be expected to turn her mind to such a possibility.[7] [6] [2001] SASC 43. [7] [2001] SASC 43 at [23]. The approach adopted by the court in Griffin and Coyle is sound but the principle enunciated in those cases is not a rule and should not be applied rigidly or inflexibly. This case perhaps lies outside the normal course of sentencing deliberations that Olsson J had in contemplation in Coyle. Sections 15, 16 and 39 of the Sentencing Act permit a sentencing court to sentence an offender without recording a conviction. The preconditions of the exercise of the power to do so depends upon satisfaction by the court, in the case of s 15, that the offence is trifling, and, in the case of s 16 and s 39, that good reason exists to do so. As I have said, in this case there was no submission that the offence was trifling. There was no basis for the magistrate to consider the application of s 15. Recently in Playford v Police[8] Vanstone J considered the power conferred upon the court pursuant to s 16 and s 39 in the following terms:[9]The structure of ss 16 and 39 of the Sentencing Act implies an expectation that in the usual case a conviction will be recorded. The recording of a conviction constitutes an important part of the imposition of a penalty. It forms part of the deterrent effect of a sentence and marks the community’s condemnation of the offender for his conduct. In addition, the recording of a conviction acts as notification to potential employers and others who may have a valid reason for knowing the character of the offender. Nevertheless, there will be cases where the likely impact of a conviction upon a person’s employment prospects will be out of proportion to the seriousness of the offending (MacGregor v Police (1995) 66 SASR 269 per Debelle J) and where the totality of the circumstances of the offending and the offender will persuade a court that there is justification for departing from the usual course of recording a conviction.[8] [2017] SASC 26.[9] [2017] SASC 26 at [25].