Chhun Sau v Commonwealth Director of Public Prosecutions - [2009] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHHUN SAU v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2009] SASC 47
Judgment of The Honourable Justice Nyland
26 February 2009
POST AND TELECOMMUNICATIONS - POSTAL SERVICES - OFFENCES
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY
Appeal against sentence imposed in 2005 - appellant was a postal worker who misappropriated mail in the course of his employment - plea of guilty but application to proceed without conviction due to personal circumstances which included care of family and cultural factors - Magistrate considered offences aggravated by having been committed in the course of employment and therefore outside the scope of s 19B Crimes Act (Commonwealth) - substantial delay in filing appeal but extensive efforts made to obtain legal assistance with respect to lodging notice.
Held: Nature and circumstances of offending of sufficient seriousness to justify the imposition of a conviction by the Magistrate - no error disclosed - extension of time refused and appeal dismissed.
Criminal Code (Commonwealth) 1995 s 471.1(1); Crimes Act (Commonwealth) 1914 ss 16A(2), 19B, referred to.
Commissioner of Taxation v Baffsky [2001] NSWCCA 332 (unreported); Gill v Brosnan) (unreported judgment 412 of 1995 of the Queensland Court of Appeal delivered 16 November 1995), applied.

CHHUN SAU v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2009] SASC 47
Magistrates Appeal

NYLAND J: This is an appeal against sentence. The appellant was charged on an information which alleged that on or about 11 October 2004 at Glynde, or other places in the State of South Australia, he dishonestly appropriated an article in the course of the Post, contrary to s 471.1(1) of the Criminal Code (Commonwealth) (1995). The particulars allege that the appellant stole an envelope containing bank notes that was addressed to “E. Watmuff, 17 Tay Road, Woodford SA 5073” that had been processed through the Glynde Delivery Centre of Australia Post. The appellant was charged on the same information with three further offences which took place on 14 October 2004, in which it was alleged that he stole:
(1)an envelope addressed to “Matilda Schaeffer-Buss, 9 Blue Crescent, Woodford, SA 5073”;
(2)an envelope addressed to “The Thomas Family, 20 Olive Street, Magill, SA 5072”, and
(3)an envelope addressed to “Elizabeth Watmuff, 17 Tay Road, Woodford SA 5073”,
each of which had been processed through the Glynde Delivery Centre of Australia Post and which were also breaches of s 471.1(1).
On 2 December 2005, the appellant appeared before a magistrate in the Magistrates Court at Adelaide, and pleaded guilty to all four offences. He had no prior appearances before a court. The learned Magistrate recorded a conviction with respect to each of the offences and released the appellant on a recognisance release order for a period of 12 months.
The only ground of appeal is a complaint that the Magistrate erred in recording a conviction with respect to each of the offences. The notice of appeal was however not lodged until 12 December 2008 and is therefore substantially out of time. The appellant now seeks an extension of time within which to proceed with his appeal. On the hearing of the appeal, Mr Caldicott appeared for the appellant and Ms Barnes appeared for the respondent. The application for an extension of time within which to appeal was supported by an affidavit of the appellant in which he referred to his extensive efforts to obtain advice to pursue an appeal in this matter. At the commencement of the hearing, I expressed the view to counsel that the extension of time would depend on me being satisfied that there was merit in the appeal. Accordingly, I heard argument with respect to the extension and the appeal at the same time.
It appears that the appellant was working as a postal officer at the time he committed these offences. As a result of complaints by a number of residents, Australia Post conducted an operation at the Glynde Delivery Centre by placing surveillance equipment and then sending items of post for the purposes of detecting whether any were stolen. On 14 October 2004 the surveillance footage indicated that the appellant had collected mail from the sorting area. When the appellant returned later that day, he was spoken to by the Australia Post investigators, who identified mail articles in his helmet, which became the subject of counts 2 to 4 on the information. When they examined the contents of the appellant’s wallet, they found another article posted on 11 October 2004, which relates to count 1 on the information. When they interviewed the appellant, he made full admissions.
At the sentence hearing the appellant was represented by counsel, who asked the court to proceed without recording a conviction, pursuant to the provisions of s 19B Crimes Act (1914). Section 19B is in the following terms:
Discharge of offenders without proceeding to conviction
(1)     Where:
(a)   a person is charged before a court with a federal offence or federal offences; and
(b)   the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)      the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
It is also relevant to refer to s 16A(2) of the Crimes Act (1914), which provides:
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a)     the nature and circumstances of the offence;
(b)     other offences (if any) that are required or permitted to be taken into account;
(c)     if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct;
(d)     the personal circumstances of any victim of the offence;
(e)     any injury, loss or damage resulting from the offence;
(f)    the degree to which the person has shown contrition for the offence:
(i)    by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)     in any other manner;
(g)     if the person has pleaded guilty to the charge in respect of the offence--that fact;
(h)     the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j)    the deterrent effect that any sentence or order under consideration may have on the person;
(k)     the need to ensure that the person is adequately punished for the offence;
(m)    the character, antecedents, age, means and physical or mental condition of the person;
(n)     the prospect of rehabilitation of the person;
(p)     the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.
(2A)However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for:
(a)     excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b)     aggravating the seriousness of the criminal behaviour to which the offence relates.
In sentencing the appellant, the Magistrate referred to his background. He said that the appellant was born in Cambodia and moved to Australia in the 1980s. He was married, but his in-laws still lived in Cambodia. The Magistrate referred to the fact that up until this matter, which resulted in the appellant’s dismissal from his employment, the appellant had been employed, providing for both his family in Australia and for his in-laws in Cambodia, who were ageing and required medical care. The Magistrate mentioned that since the loss of his job, the appellant had been involved in community work. It was also put to the Magistrate that the appellant had been highly embarrassed by the commission of these offences and that with his cultural background the matter had had a very significant impact upon him.
The learned Magistrate accepted that in almost all respects, the appellant’s background and current circumstances would have satisfied the first element of the test for a s 19B application. He considered however that these particular matters were aggravated by the fact that the offences had been committed in the course of the appellant’s employment. The Magistrate considered that took the matter “outside the scope of s 19B”, in addition to which there was more than one offence. He therefore proceeded to record convictions with respect to each of these crimes, but in view of the personal circumstances of the appellant, he placed him on a recognisance release order for a period of 12 months.
The thrust of the submissions put on behalf of the appellant on the appeal was that the learned Magistrate had erred by taking into account irrelevant considerations in considering the question of s 19B, as he had given paramountcy to the fact that the offences took place in the context of an employment relationship and had thereby failed to turn his mind to the matters set out in ss 19B and 16A(2) when he declined to exercise his discretion not to record a conviction.
Mr Caldicott referred to the appellant’s good character, as demonstrated by his lack of prior criminal history, his significant remorse and regret for his actions. He also referred to his cooperation with, and disclosure to, the Australia Post investigators, his early guilty plea and his need for the ongoing support for his wife and young children. Mr Caldicott also referred to the impact of the convictions on the appellant’s restricted employment prospects owing to his limited grasp of English. He asked that I take into account the appellant’s cultural background and deep shame as a result of having committed these offences. He also submitted that the offence had been committed out of need, as opposed to greed, as he had committed these crimes out of a desire to provide additional financial support for his family. Mr Caldicott suggested that these were trivial offences, given that the appellant had only obtained a sum of $10 as a result of his actions.
The reasons of the learned Magistrate indicate that he had regard to all of the appellant’s personal circumstances and gave appropriate weight to them which, undoubtedly, was the reason why he considered that it was appropriate to release the appellant on a recognisance release order for a period of 12 months, whereas the maximum penalty for each of these crimes was a sentence of imprisonment of 12 months or a fine of $6,600.
The only issue for determination is whether the learned Magistrate fell into error when he regarded these offences as having been aggravated as a result of having been committed in the course of the appellant’s employment and therefore outside the scope of s 19B, and also by having regard to there being more than one offence. Mr Caldicott submitted that the proper course was for the Magistrate to have identified one or more of the factors in s 19B(1)(b), in order to enliven his discretion, followed by a consideration of whether in regard to such factor or factors, it was inexpedient to inflict any punishment or reach the other conclusions provided by the section[1].
[1] Commissioner of Taxation v Baffsky [2001] NSWCCA 332 (unreported).
The Magistrate’s remarks as to this matter are relatively brief, but I bear in mind that these were ex tempore remarks made by an experienced magistrate in the course of what undoubtedly was a very busy list. I do not consider that the brevity of the remarks indicates that the Magistrate failed to turn his mind to the appropriate steps which he was required to take when considering the application for him to proceed without recording convictions. It is evident from his remarks that he turned his mind to s 19B but finally concluded that the appellant was not entitled to the benefit of that section. Section 16A(2) required the Magistrate (inter alia) to take into account the nature and circumstances of the offending. Deterrence was also an important issue. The Magistrate was clearly not satisfied that these offences were trivial as they amounted to a breach of trust, having been committed in the course of the appellant’s employment and he did not find any extenuating circumstances. Given the seriousness of the matter, the learned Magistrate’s opinion was that, notwithstanding the personal circumstances of the appellant, it was inappropriate to exercise his discretion in favour of the appellant and proceed without conviction. In my view, the Magistrate was not in error in proceeding in that way. The money obtained by the appellant may have been relatively small but that of itself does not render the matter trivial. It was also a relevant consideration that the offending occurred on more than one occasion, as opposed to being some isolated, impulsive act.
In Gill v Brosnan[2] the Queensland Court of Appeal reviewed a sentence imposed in similar circumstances in which the appellant also sought on appeal to set aside his conviction for postal offences. In that case, the appellant was aged 33 and was a Senior Postal Delivery Officer who stole 16 articles of security post. He pleaded guilty and it was accepted that he was remorseful. He had a good work history. His stated reason for committing the offence was that he needed money to build a fence to safeguard his three-year old child from a creek that ran near his house. In that case, Thomas J (with whom Davies JA and Dowsett J agreed) said:
The offence in question is a serious offence and counsel concedes that it involves a breach of trust by a person in a position of considerable responsibility. It is important that the mail be protected as it is an important service in our community. The ultimate question in this appeal is whether the mitigating circumstances and the circumstances which naturally induce some sympathy with the position of the applicant, are sufficient to allow this matter to go forward as one in which no conviction will be recorded. … In my view that cannot be appropriately done in the present matter.
[2] Unreported judgment 412 of 1995 of the Queensland Court of Appeal delivered 16 November 1995.
I respectfully adopt those remarks as I consider they are of equal application to the present case. In my opinion, the nature and circumstances of the offending were of sufficient seriousness to justify the imposition of a conviction by the Magistrate. The Magistrate considered all relevant matters and did not err in his conclusion. In the circumstances, I consider there is no merit in this appeal. The application for extension of time is therefore refused and the appeal is dismissed.