Camplin v POLICE - [2004] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CAMPLIN v POLICE
Judgment of The Honourable Justice Gray
25 June 2004
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING - TAKING AND CARRYING AWAY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal against sentence - appellant pleaded guilty to one count of larceny and three counts of driving offences - convictions were recorded - the appellant was sentenced to a good behaviour bond of two years, fined $250 and disqualified from holding or obtaining a driver's licence for seven days - at time of hearing appellant was unrepresented - discussion of principles related to dealing with unrepresented litigants - magistrate in error - appeal allowed - appellant resentenced - consideration of appellant's personal antecedents - conviction in respect of larceny set aside, two year good behaviour bond sustained, conviction and penalty imposed in respect of the driving offences sustained.
Criminal Law (Consolidation) Act 1935 (SA) s 131; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 16, s 39; Mental Health Act 1993 (SA); Motor Vehicles Act 1959 (SA) s 9, s 74, s 102, referred to.
Cooling v Steel (1971) 2 SASR 249, considered.

CAMPLIN v POLICE
[2004] SASC 185
Magistrates Appeal

GRAY J On 10 June 2004 this appeal against sentence was allowed. The reasons for that order follow.
The appellant was charged with one count of larceny[1] and three driving offences.[2] The appellant pleaded guilty and was convicted on all counts. He was sentenced to a good behaviour bond of two years in respect of the offence of larceny and fined $250 and disqualified from holding or obtaining a drivers license for seven days in respect of the driving offences.
[1] An offence under section 131 Criminal Law (Consolidation) Act 1935 (SA)
[2] Offences under sections 9, 74 and 102 of the Motor Vehicles Act 1959 (SA)
The offending occurred on 10 April 2003 at Salisbury Downs. The appellant stole two mobile phones and a DVD player from a phone shop. The property was recovered by the police. The offences of driving unregistered, without insurance and without a licence were also committed on 10 April 2003. The appellant was 20 years old at the time of offending.
The matter was heard in the Elizabeth Magistrates Court. A number of adjournments were successfully sought at times by the appellant in person and at times by counsel. At the time of the hearing, the appellant was unrepresented. Apparently there had been significant difficulty obtaining reports from the appellant’s treating psychiatrists and psychologists. Counsel was not in attendance. When counsel attended, shortly after the hearing, the matter was sought to be reopened, however that application was refused.
The following grounds of appeal were advanced:
The magistrate erred in failing to adjourn the matter to allow the appellant to speak to counsel or to allow counsel the opportunity to appear;
The magistrate erred in failing to take the steps outlined in Cooling v Steel[3] regarding unrepresented parties in that he:
-accepted the pleas of guilty without advising the appellant of his rights to seek and adjournment;
-did not invite the appellant to contest or assent to the facts alleged by the prosecutor;
-failed to make any or adequate enquiry about the medical issue raised by the appellant;
-failed to make any or adequate enquiry concerning matters in mitigation from the appellant;
-failed to adjourn the proceedings when the appellant was unrepresented.
-failed to make enquiry into whether the discretion pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA) was enlivened;
The appellant was not able to put all matters relevant to mitigation before the court. In particular, he was not able to raise the issue of his mental health.
[3] (1971) 2 SASR 249
Counsel for the appellant submitted that as the appellant was represented on other occasions and was also suffering a mental disorder, the magistrate ought to have adjourned the matter. It was said that the appellant was suffering from a mental disorder at the time of the offending and that he had been self medicating his hyperactivity disorder with amphetamines.
The Crown submitted that the magistrate did not err in failing to adjourn the matter in the absence of counsel for the appellant. Affidavit material submitted by the Crown suggested that at the time of the hearing the appellant was adamant that the matter be finalised in the absence of counsel.
However, the Crown conceded that it would have been prudent for the magistrate to permit further submissions to be made by counsel for the appellant when he arrived. It was accepted that the approach taken by the magistrate precluded the appellant from making potentially relevant submissions as to penalty. The Crown conceded that the sentencing discretion may have miscarried, that there was a perceptible risk of a miscarriage of justice and that the appellant should be re-sentenced.
As a result of the procedure followed there was a risk of a miscarriage of justice. In the circumstances, it was appropriate that the appeal be allowed and the appellant re-sentenced.
The appellant left High School having completed Year 11 and remained in employment until February 2003 as a factory hand. He has no relevant criminal antecedents. The appellant is now aged 21 years. He has a four year old child who he sees every weekend by arrangement with the child’s mother.
The appellant has a history of mental illness. This has been exacerbated at times by trauma within his family. On occasions he has been detained pursuant to the provisions of the Mental Health Act 1993 (SA).
The appellant has received psychiatric treatment for his mental illness for many years. He receives ongoing psychiatric treatment. The appellant is presently using prescribed medication for mood disorder and schizophrenia. He has been diagnosed with depression and a condition described as attention deficit hyperactivity disorder.
A pre-sentence report compiled by a Community Corrections Officer reported:
Mr Camplin said that he is suffering from depression and he has also been diagnosed with attention deficit disorder. He also said that in the past he has attempted suicidal (sic). I have advised Mr Camplin to see a Psychiatrist trough (sic) James Nash House however he has refused to do so arguing that he has his own Psychiatrist who is Dr Saro (sic) and he is happy with her. His is using prescribed medication such as Creapax 15mg for sleepless episode, Zytrexa 2.5mg and Citilopram 20mg 2 twice a day.
It was also reported that the appellant was assessed and referred to the Department’s Alcohol and Other Drug program. He failed to attend this program. The report concluded that a full assessment of the appellant’s mental health could not be made as the appellant’s psychiatrist could not be contacted. It was said:
Given all above Mr Camplin appears resistant to follow the directions to attend intervention services given by his Correctional Officer, however he is complaint (sic) with reporting instruction.
Dr Nash, a psychiatrist, who was consulted by the appellant between the years 1994-1998 reported that the appellant had been diagnosed as suffering from an attention deficit disorder since 1994. This was described as being a life long disorder. The appellant was described as being in the ‘severe category’ of the disorder. The types of complications experienced included:
Low self esteem, demoralisation, non accidental injury, grade retentions, school expulsions, family stress, social difficulties, school failure, accidental injuries, anxiety disorders, poor school achievement, school suspensions.
It was explained in Dr Nash’s report that an attention deficit disorder often coexists with other conditions, such as oppositional defiant disorder. Dr Nash diagnosed the appellant with both conditions. He reported:
In this condition the main pattern of behaviour is that of being oppositional, antagonistic, negative, cynical, spiteful, and defiant. People with oppositional defiant disorder are argumentative at home but in other situations, such as school or with people outside the family, this may not be present. The behaviour may later become a problem in other settings as well as the home. They do not usually admit to being difficult to others, but blames others for what they have done.
…
If [the appellant] did not receive appropriate medical treatment to help manage his [condition] – then this would place him at considerable risk for carrying out inappropriate behaviours – as outlined in the diagnostic criteria for these disorders.
…
…[I]t must be recalled again and again that [the appellant’s] behaviour is ‘driven’ by neurological mechanisms. He cannot control his behaviour…
It was submitted by counsel for the appellant that given his personal circumstances, his lack of prior offending and his mental disorder, a conviction should not be imposed for the offence of larceny. It was said that such a conviction would further reduce his chances of obtaining employment and overcoming his personal difficulties.
A discretion to proceed without recording a conviction is provided by section 39 of the Sentencing Act which provides:
(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond--
(a) to be of good behaviour; and
(ab) to comply with the other conditions (if any) included in the bond; and
(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
Counsel for the Crown accepted that when re-sentencing this court would be justified in proceeding without recording a conviction with respect to the larceny offence.
Given the appellant’s personal circumstances and his mental disorder, it was appropriate to proceed without recording a conviction on the larceny charge.
The conviction recorded in respect of the offence of larceny was set aside. The supervised two-year bond to be of good behaviour imposed by the magistrate and the conviction and penalty imposed in respect of the driving offences were appropriate orders. There was no challenge to those orders and they remain in force.