CARGER v Police - [2004] SASC 388

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CARGER v POLICE
Judgment of The Honourable Justice White
25 November 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS - SOUTH AUSTRALIA
Appellant pleaded guilty to being on premises for an unlawful purpose and behaving in an indecent manner by placing a "spy camera" in the bathroom of his two female housemates - Magistrate convicted appellant and imposed a sentence of two months imprisonment which was suspended - Appellant had no prior convictions and was genuinely remorseful - Magistrate accepted that acts were intended as a prank - Magistrate erred in considering that no sentence other than a sentence of imprisonment was appropriate - Appeal allowed - Appellant fined $250 and required to carry out 40 hours of community service.
Magistrates Court Act 1991, s 42; Summary Offences Act 1953m s 17m s 23; Criminal Law (Sentencing) Act 1988, s 18A, referred to.

CARGER v POLICE
[2004] SASC 388
Magistrates Appeal
WHITE J:
Introduction

This is an appeal pursuant to s 42 of the Magistrates Court Act 1991.
The appellant was sentenced on 12 August 2004 for two offences. The appellant had pleaded guilty to both.
Count 1 alleged that the appellant was, on 10 December 2003, in part of some premises at Goolwa Beach for an unlawful purpose, contrary to s 17(1) of the Summary Offences Act 1953. Count 2 alleged that he had behaved in an indecent manner on the same day in the ground floor bathroom of the same premises, contrary to s 23(1)(b) of the Summary Offences Act. The maximum penalty for the first count was a fine of $2,500 or imprisonment for six months. The maximum penalty for the second count was a fine of $1,250 or imprisonment for three months.
The Magistrate entered convictions on both counts. He imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, namely, a sentence of imprisonment of two months. The Magistrate said that he would have imposed a sentence of three months but gave the appellant credit for his plea of guilty, his genuine remorse and contrition and his cooperation with the investigating police officers. The Magistrate then suspended that term of imprisonment upon the appellant entering into a bond in the sum of $300 to be of good behaviour for a period of two years and six months.
On the appeal, the appellant submits that the sentence of the Magistrate was manifestly excessive. That submission was directed, in particular, to the imposition of a sentence of imprisonment.
Circumstances of the Offences
The circumstances of the offending in this case were a little unusual. The premises in which the offences occurred comprised a two-storey beach house. The lower storey was occupied by two females, with the appellant occupying the upper storey. Each storey had its own bathroom and toilet facilities. As I understand it, the appellant was a sub-tenant of the two females but he was, in many respects, their housemate.
The living arrangements included an agreement that the females would make use of the lower storey bathroom and toilet and the appellant the upper storey bathroom and toilet. Other than in quite limited circumstances, which are not presently relevant, the appellant had no entitlement to enter the lower storey bathroom.
On 10 December 2003, the appellant entered the lower storey bathroom and placed there a camera, described to as a spy camera, which had the capacity to transmit electronically picture images to a receiver located elsewhere. The camera was quite small, about the size of a 10 cent piece, and was powered by a battery.
The camera was not well concealed. I have the impression that its presence was reasonably obvious. In any event, it was detected by one of the females very soon after it had been placed in the bathroom. Each of the females was shocked and horrified. They considered, quite understandably, that there had been a gross breach of their privacy. They were uncertain as to how long the camera had been present.
The females suspected that the appellant may have been responsible for placement of the camera. They confronted him but he denied any involvement.
Later, the police became involved. They interviewed the defendant who, on two separate occasions, denied his involvement. Later, the police confronted the appellant with evidence indicating that he had purchased, via the internet, a spy camera of the type used as well as a receiver. The appellant continued to deny involvement. Later however, the appellant voluntarily attended a police station and made full admissions.
The Effect on the Victims
The Magistrate received Victim Impact Statements from the two females. Those statements reflect the understandable shock and horror at the gross breach of their privacy which the appellant’s conduct entailed. Furthermore, the statements reflect the additional distress which the appellant’s gross breach of trust entailed. The appellant was a friend and workmate, as well as a housemate of the two females. They had accepted his initial denials of his involvement. They had readily accepted that he was not capable of the conduct involved. This had the effect of causing additional distress because it suggested to them that some unknown third party must have been responsible for the placement of the camera. The females had all of the stress of feeling that they were being spied on and/or stalked. Both females spoke of a continuing sense of disquiet caused by the appellant’s conduct.
The Magistrate’s Decision
The Magistrate said that he regarded the offences as serious examples of their kind. Although the Magistrate had some reservations, he accepted the appellant’s explanation for his conduct. That explanation was that the appellant had been put up to placing the camera in the bathroom by some members of a football team, of which he was also a member. Those members were, apparently, intrigued by the fact that he shared a house with two females. The appellant said that although he had been encouraged and persuaded by the others to obtain and install the camera he had been reluctant to do so. Having obtained the camera he decided to abandon the plan, discard the receiver but still install the camera in the belief that it would be discovered, talked about at work and in their respective circles of friends so that word would spread to the football team that the appellant had carried out the proposed plan. The appellant submitted that he had thereby hoped to save face amongst the team members but without there being any transmission of compromising images. The appellant’s case was that he had expected that the two females would understand that the placement of the camera was in the nature of a prank. He was surprised and shocked at the distress exhibited by the two females when they confronted him. That had led him to initially deny his involvement and he had thereafter maintained the lie until deciding to go to the police and make a frank confession. Despite having some concerns the Magistrate said that he was prepared to proceed on the basis of the submission put by the appellant’s then counsel.
The Magistrate accepted that the appellant was genuinely remorseful and contrite. It was put to him that the appellant was an immature, unsophisticated young man who had given insufficient thought to the consequences of his behaviour.
The Appellant’s Personal Circumstances
The appellant was born on 10 March 1982 and was therefore aged 21 at the time of his offending. The appellant had no relevant prior history. His counsel tendered before the Magistrate a number of character references, all of which spoke well of the appellant. Following his admission of involvement, the appellant resigned his employment, understanding that it was not practicable for him to continue working with the two females. He has since obtained other employment. He has had a steady employment history. It was put to the Magistrate that by reason of his offending, the appellant had suffered a number of detriments including the loss of friendship with the victims, his having left the house although continuing to pay rent for a period, his voluntarily paying in full the Telstra bill for the household, the loss of job and the embarrassment and shame which disclosure of his conduct had produced.
Intereference with a Sentencing Decision on Appeal
In order to succeed with the appeal, the appellant must satisfy me that the Magistrate has made some error of principle, or that the sentencing process has miscarried by reason of some mistake, or that the Magistrate failed to have regard to some relevant factor, or had regard to an irrelevant factor. Absent any of those circumstances, I should interfere only if it can be said that despite the lack of identification of a precise error, the sentence imposed is excessive.
Decision on Appeal
Save for one matter, I do not consider that the appellant has made good any of his complaints on the appeal. That matter is an apparent inconsistency in the Magistrate’s reasons. On the one hand, the Magistrate said that he regarded the offences as serious examples of their kind. On the other, he accepted the submission that the appellant’s conduct should be characterised as a prank. I understand that the word “prank” was used by the appellant’s then counsel to indicate that the inspiration for the appellant’s conduct was not a serious one, and that what he sought to achieve was something in the nature of a hoax. In my opinion, the mere characterisation of the conduct as a prank, understood in that sense, does not mean that the conduct should not be regarded as serious. The effect of the conduct was still serious, even if that effect was unintended. However, the fact that the inspiration for the appellant’s conduct in the present case was the intention to carry out a prank coupled with some other matters does, to my mind, militate against the Magistrate’s characterisation of the offences as “serious examples of their kind”. Those other matters are the fact that no pictures were transmitted, images of the females were not taken and have not been used in any way, the camera was placed in a position where its presence was reasonably obvious and, I would add, the appellant’s good record. When one has regard to those matters in particular, I do not consider that the Magistrate should have held that no sentence other than imprisonment was appropriate.
I agree with the Magistrate that the penalty for these offences should provide for both personal and general deterrence. The victims of the defendants conduct, and members of the public generally are entitled to look to the law for protection from invasions of privacy of the kind which the appellant’s conduct suggested. I consider, however, that those aims could be achieved by other sentencing options, in particular, by the imposition of a fine and a requirement that the appellant perform community service.
I am satisfied therefore that it is appropriate to allow this appeal. In my opinion, the Magistrate has erred, in regarding these offences as so serious as to make any sentence other than a sentence of imprisonment inappropriate.
Conclusion
For the reasons given, I allow the appeal. I will set aside the order of imprisonment imposed by the Magistrate. The appellant will be fined the sum of $250, and, in addition, be required to carry out 40 hours of community service. The orders of the Court are:
1. The appeal is allowed.
2.The sentence of imprisonment of two months imposed by the Magistrate is set aside.
3.In lieu thereof, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 I impose a penalty of a single fine of $250 in respect of both offences.
4.In addition, the appellant is required to perform 40 hours of community service within the period of nine months commencing on the date of this sentence.
5.The appellant is required to report to the office of the Department for Community Corrections at 3 James Clark Road, Noarlunga Centre not later than two working days from the date of this sentence unless, within that period, the appellant receives a notice from the Chief Executive Officer of the Department for Community Corrections to the contrary.
6.The appellant is to pay the Court fees of $260.20 fixed by the Magistrate.