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) 106 SASR 91; In re Van Beelen (1974) 9 SASR 163; R v McIntee (19895) 38 SASR 432; Police v Watson (2016) 125 SASR 212, considered.

BROWN v POLICE
[2017] SASC 83
Magistrates Appeal: Criminal
STANLEY J.
Introduction

This is an appeal against the recording of a conviction.
On 14 January 2014 the appellant entered a plea of guilty in the Magistrates Court to a charge of possessing 4.65 kilograms of a controlled drug, namely, cannabis, intending to supply the drug to another person or persons contrary to s 33I(2)(b) of the Controlled Substances Act 1984 (SA) (the Controlled Substances Act).
The magistrate recorded a conviction, imposed a fine of $900 and ordered the appellant to pay court costs. The magistrate made an order for forfeiture of the drug and associated paraphernalia.
The appellant seeks to appeal against the recording of a conviction.
The appeal is well out of time. The appellant seeks an extension of time within which to institute the appeal.
The disposition of this appeal requires consideration of what occurred during the hearing in the Magistrates Court.
Submissions before the magistrate
The magistrate heard submissions immediately following the entry of the guilty plea by the appellant. Counsel for the prosecution set out the circumstances of the offending and indicated to the court that the prosecution accepted that the appellant was a user of cannabis and that he supplied cannabis to his family and friends. Prosecuting counsel indicated that she understood the appellant would be submitting that a bond pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) would be sought and the Director took no issue with that.
Defence counsel then applied for the appellant to be given the benefit of a s 39 bond. She detailed the appellant’s personal circumstances. As she was doing so, the following exchange occurred:
Magistrate:I am more inclined just to fine him.
Defence Counsel:     Thank you, your Honour.
Magistrate:Has anyone got an issue with that?
Defence Counsel:     No.
Magistrate:If he has realised the error of his ways probably a bond will not serve a great deal of purpose.
Prosecuting Counsel: The Director takes no issue with that. What I should have raised earlier is the Director does also obviously seek forfeiture of the cannabis and equipment under s.52E(7) of the Controlled Substances Act.
Defence Counsel:     Not opposed.
The magistrate proceeded immediately to sentence the appellant.
The magistrate’s sentencing remarks
In imposing sentence the magistrate said:
Adam John Brown, you have pleaded guilty to one offence of possessing a controlled drug, namely cannabis, intending to supply that drug to another person or persons. Police attended your home at Kesters Road, Para Hills, on 2 July 2013. They found a so-called ‘grow room’, there were hydroponic lights, empty pots and a large amount of freshly harvested cannabis – 4.65 kg of cannabis.
You have got no prior convictions, you have entered an immediate plea of guilty to this charge. I am told that you have resorted to using cannabis, having previously had a methylamphetamine addiction you found cannabis assisted you with the withdrawal from that drug. You sought counselling assistance and you realise now that the use of cannabis can exacerbate underlying mental health issues. You suffer from anxiety and depression and that conclusion is unquestionably correct. Long-term cannabis use will cause you problems. You work, you earn about $900 per week. You have the usual expenses including a mortgage. As I say, you have entered an immediate plea of guilty to this charge.
I record a conviction, had it not been for your guilty plea I would have imposed a fine in the sum of $1500. I reduce that by 40% given your plea at first appearance, giving a figure of $900. There will be an order for court costs. There will be an order for forfeiture of the drug and associated paraphernalia to the prosecution, or to the Crown in any rate. Alright, so conviction and fine, you are free to go. You do not have to pay that all at once, you can pay it over time to suit your circumstances through the Fines Payment Unit. Thank you.
Extension of time
The notice of appeal was filed on 24 November 2016. The appeal is some two years and 10 months out of time.
The circumstances surrounding the failure of the appellant to institute the appeal within time are somewhat unusual. They are set out in two affidavits of his current solicitor which depose to her being instructed to act for the appellant on 7 October 2016. She explains that following the imposition of sentence on 14 January 2014 the appellant received a letter dated 15 January 2014 from his then solicitor, who had acted as his counsel on sentencing. Relevantly, the letter contains the following:
After hearing submissions, including a summary of the references from your counsellor, His Honour refrained from imposing a conviction. His Honour imposed a fine of $900 and ordered forfeiture of the Cannabis seized.
…
A without conviction finding is a fantastic result and we are delighted to have been able to assist you in the negotiation and finalisation of this charge.
The appellant did not discover that a conviction had been recorded until 8 September 2016 when he applied for a police check. Due to mental health issues it took the appellant some time to instruct a solicitor to act and to provide the solicitor with information relevant to the filing of an appeal. That information was not finally provided to the appellant’s solicitor until 11 November 2016.
The respondent accepts that it is not prejudiced by reason of the delay and that the appellant has proffered a reasonable explanation for his failure to commence the appeal within time. Nonetheless, the respondent opposes the grant of an extension of time on the basis that the appeal is not reasonably arguable.
That necessitates consideration of the merits of the appeal.
Principles applicable to a sentence appeal from the Magistrates Court
The principles applicable to an appeal against sentence are well established. In Police v Chilton[1] Kourakis CJ, with whom David J agreed, said that sentences imposed in the Magistrates Court could only be set aside for error in accordance with House v The King[2] where Dixon, Evatt and McTiernan JJ said:[3]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[1] [2014] SASCFC 76 at [18].
[2] (1936) 55 CLR 499.
[3] (1936) 55 CLR 499 at 504 – 505.
The submissions of the parties
The appellant submits that it is apparent it was the intention of the appellant’s counsel before the magistrate to ask that the matter be dealt with without a conviction being recorded. While a submission that the matter should be dealt with without a conviction being recorded was not made expressly, the magistrate erred in not considering the issue. The submission was made to the magistrate that the matter should be dealt with by the imposition of a bond under s 39 of the Sentencing Act. That section allows for discharge on a bond with or without recording a conviction. There is no reference in the magistrate’s sentencing remarks to any consideration of whether he should proceed without recording a conviction. Accordingly, the sentencing discretion miscarried.
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].
In this case no submission was made in terms that the magistrate should proceed without recording a conviction. However, before the magistrate, counsel for the appellant expressly invoked the provisions of s 39 of the Sentencing Act. As has been noted, that permits the court to deal with an offender by the imposition of a bond with or without recording a conviction. While she was developing a submission why the magistrate should invoke the power conferred by s 39 she was interrupted by the magistrate to indicate that he considered that a fine rather than a bond was more appropriate. It may be that counsel was diverted from developing a submission that the court should proceed without recording a conviction. It is unnecessary to speculate, however, as I am satisfied that, in these particular circumstances, the magistrate having addressed his mind to the power conferred by s 39 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 utilising s 16. In my view, the circumstances known to the magistrate were sufficient to require the magistrate to give consideration to the application of s 16 given the course that the hearing had taken.
The magistrate interrupted the submission being made by the appellant’s counsel to indicate that he considered a bond was not appropriate as the appellant had realised the error of his ways. He formed this conclusion presumably on the basis of the submissions made that the appellant is a relatively young man who had a history of lengthy methylamphetamine addiction that he was dealing with by smoking cannabis which he produced and supplied to family, friends and acquaintances. He had a history of anxiety and depression but was addressing his personal problems and offending by seeking treatment by way of attending counselling and undertaking a mental health plan involving psychological assessment. He had stopped using drugs. The magistrate had received a favourable reference from the appellant’s counsellor which evidenced the positive change he had made in his life. The appellant had much to commend him to the court. He was working in a supervisory role in the dispatch area of his employer’s business, he had been in full time employment since school and he owned his own home. His prospects for rehabilitation were good. While this was fairly serious offending, he had no criminal antecedents. The appellant had entered a plea of guilty at the first opportunity. In my view, these circumstances called for the magistrate to consider proceeding without recording a conviction.
I am not critical of the economy of the sentencing remarks. No doubt the magistrate had a busy list of matters with which to deal. However, the sentencing remarks do not support the respondent’s submission that it should be inferred the magistrate gave consideration to whether to proceed without recording a conviction and decided against it. The magistrate twice referred to the fact that he was recording a conviction. If he had turned his mind to whether that was appropriate given the power conferred by s 16, I expect he would have said something, even briefly, to explain why he was doing so.
In my view, the failure to consider whether to proceed without recording a conviction pursuant to s 16 constitutes a House v The King error. It was a relevant matter to be considered in this particular case in the exercise of the sentencing discretion. Accordingly, I am satisfied that the magistrate’s sentencing discretion miscarried. In these circumstances I consider it appropriate that the appeal should be allowed, the conviction set aside and the appellant resentenced.
Resentencing
Section 16 of the Sentencing Act provides:
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.

The exercise of the discretion conferred by s 16 is enlivened if the court is satisfied of a number of pre-conditions. First, the court must propose to impose a fine, a sentence of community service, or both. Second, it must be satisfied that the defendant is unlikely to commit such an offence again. Third, the court must be satisfied that there is good reason not to record a conviction, having regard to one or more of the factors set out in s 16(b). If those pre-conditions are satisfied, the discretion is enlivened. However, that does not oblige the court to exercise the discretion. The court must consider whether it is, in all the circumstances, appropriate to exercise the discretion.[10]
[10] R v Stubberfield [2010] SASC 9 at [40]-[41], (2010) 106 SASR 91 at 101-102.
In considering whether there is justification for departing from the usual course of recording a conviction in this matter, the court was asked to admit fresh evidence of mitigation arising since the original sentence was imposed. This course was not opposed by the respondent. Pursuant to s 42(4) of the Magistrates Court Act 1991 (SA), the court is invested with power to receive further evidence on the hearing of the appeal if the interests of justice so require. It is well established that the power to receive further evidence on appeal must be exercised with caution. In In re Van Beelen,[11] the following principles were identified:
·the ultimate question is whether there has been a miscarriage of justice;
·the additional evidence must be such that it would have been admitted at the trial;
·the additional evidence must be of such substantial importance and of such cogency, plausibility and relevance that, when considered with the other evidence given at the trial, the result ought in the minds of reasonable people to be affected so as to remove the certainty of guilt which the former evidence produced; and
·in considering whether a miscarriage of justice has occurred great importance will generally be attached to whether a deliberate choice was made by the defendant not to call the evidence and the probative force and nature of the evidence adduced at the trial.[12]
[11] (1974) 9 SASR 163.
[12] (1974) 9 SASR 163 at 183-184.
In R v McIntee,[13] King CJ observed:[14]
The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice ... appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.
[13] (1985) 38 SASR 432.
[14] (1985) 38 SASR 432 at 435.
The appellant sought to tender a medical report from Dr Prasanna Ramachandran of 20 March 2017, a psychiatric report from Dr Hsu-en Lee of 18 February 2017 and a reference from Ms Norah Alsaiedy, a senior job placement services consultant with Konekt, dated 24 March 2017.
Those materials disclose that since the appellant was sentenced he suffered a workplace injury in 2014. This resulted in a bilateral wrist carpal tunnel syndrome. He has undergone surgery and a program of rehabilitation. Unfortunately, as a result of this injury, he has lost his previous employment as he was no longer physically able to perform various aspects of that work. Subsequently, he has been unable to find further employment. That has not been due to any lack of effort on his part. The reports evidence his efforts to obtain paid employment, including by undertaking work hardening placement and attending workshops targeted at preparing for work. Ms Alsaiedy writes that the appellant has been putting a lot of effort into securing himself paid employment. He has on occasions presented to her with tears saying that he is feeling very depressed because he has made a lot of effort to change his lifestyle but is still struggling to get paid employment as a truck driver due to the need for a police clearance. She writes that the absence of a police clearance has been the main barrier for him applying for suitable work. Both the medical reports attest to the genuine efforts being made by the appellant to find employment and to lead a decent life as a law-abiding and upstanding citizen.
It is apparent that the recording of a conviction has had a significantly broader impact on the appellant in the time since he was sentenced. While his injury cost him the stable employment he had previously enjoyed, the conviction has limited his ability to move into different fields of employment to which he is now confined by his disability.
Given the absence of any opposition to the receipt of this fresh evidence, and my satisfaction that an unjust sentence may result if the court does not receive this evidence, which was not available at the time the appellant fell to be sentenced as it relates to subsequent events, I consider it is in the interests of justice to admit it.
On appeal, the appellant’s counsel also submitted that the lack of a police clearance has prevented him from coaching or assisting with junior football teams at his local football club with whom he has had a long-standing involvement.
Having regard to all the material before me, including the material that was before the magistrate, like him I am satisfied that it is appropriate to impose a fine for this offending. I am also of the opinion it is unlikely the appellant will again commit an offence against s 33I of the Controlled Substances Act. I am reinforced in this view by the evidence of the efforts he has made to rehabilitate since January 2014 and the absence of any further offending since the commission of the subject offence on 2 July 2013.
I am satisfied that good reason exists for not recording a conviction, having regard to the appellant’s lack of prior criminal history, his stable employment history before his injury in 2014, his psychiatric illness, the steps taken by him towards treating his lengthy substance abuse issues, his rehabilitation and the impact and likely impact of a conviction on him in the future.
In the circumstances, I am satisfied that this is one of those unusual cases which I discussed in Police (SA) v Watson,[15] where this is an occasion to temper justice with mercy. Having regard to the totality of the circumstances of the offending and the offender, a departure from the usual course of recording a conviction is justified. In the exercise of my discretion I would proceed to impose a fine of $900, without recording a conviction.
[15] [2016] SASC 92, (2016) 125 SASR 212.
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.