CLARK v Police - [2011] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CLARK v POLICE
[2011] SASC 206
Judgment of The Honourable Justice Vanstone
30 November 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Appeal against sentence - appellant found guilty by a magistrate of theft of a purse - whether magistrate erred in recording a conviction - whether magistrate impermissibly took into consideration the fact that the appellant had chosen to contest the charge in determining whether appellant was likely to commit such an offence again.
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
R v Stubberfield (2010) 106 SASR 91; Sims v Police [2000] SASC 102, applied.

CLARK v POLICE
[2011] SASC 206
Magistrates Appeal

VANSTONE J: The appellant pleaded not guilty in the Magistrates Court to one count of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that he took a woman’s purse from a private room in the Palace Hotel at Adelaide. The purse contained $270 in cash. The hearing was completed in two days. At its conclusion the magistrate found the appellant guilty and delivered ex tempore reasons for his finding.
The magistrate then heard submissions in mitigation of penalty. The maximum penalty for the offence is 10 years imprisonment. He proceeded to record a conviction and to impose a fine of $500.
The appellant appealed to this Court against both the finding of guilt and the penalty imposed. However, prior to the hearing of the appeal he informed the Court through his solicitors that he wished to withdraw the appeal against conviction. He prosecuted the appeal against sentence on the sole ground that the magistrate erred in refusing to exercise his discretion under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) to impose a penalty without recording a conviction.
Background
The offence occurred at about 2 o’clock in the morning of 14 August 2010. During a night of extended drinking, the appellant and his wife went to the Palace Hotel. While there, they accepted an offer from an acquaintance to receive a lap dance in a private room of the hotel. The incident was caught on closed circuit television. During the performance the appellant and his wife were on a couch. The dancer had placed her purse under the couch prior to the dance. Towards the end of the performance the appellant got up from his position and then sat down again, within reach of the purse. While the dancer was speaking with the appellant’s wife, the appellant, rather skilfully and surreptitiously, picked up the purse and placed it under his armpit. He then took it to the hotel toilets.
The magistrate was told, and apparently accepted, that the appellant was a 29 year old man of prior good character who lived with his wife and two young children, one of whom had special needs.…

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 CLARK v Police

Details

AGLC: CLARK v Police [2011] SASC 206
Case: [2011] SASC 206
Decision Date: 30 November 2011

CaseChat Overview and Summary

The case of CLARK v Police involved an appeal against a sentence imposed by a magistrate. The appellant had been found guilty of theft of a purse and contested the decision, arguing that the magistrate had erred in recording a conviction. The appellant claimed that the magistrate had improperly considered the fact that he had contested the charge in determining his likelihood to commit such an offence again.

The central legal issues revolved around whether the magistrate had erred in exercising his discretion under section 16 of the Criminal Law (Sentencing) Act 1988 (SA). This section allows a court to impose a penalty without recording a conviction if it believes the defendant is unlikely to commit such an offence again and there are good reasons for not recording a conviction, considering factors such as character, antecedents, age, or any other extenuating circumstances.

The court examined the magistrate's reasoning and found that the magistrate had considered all relevant factors in arriving at his decision. The magistrate acknowledged the appellant's prior good character and employment history but also noted the prolonged nature of the case and the appellant's lack of remorse, which he deemed relevant to the likelihood of reoffending. The court held that the magistrate's decision was within his discretionary powers and found no error in the approach or facts. Therefore, the appeal against the sentence was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appealed to this Court against both the finding of guilt and the penalty imposed. However, prior to the hearing of the appeal he informed the Court through his solicitors that he wished to withdraw the appeal against conviction. He prosecuted the appeal against sentence on the sole ground that the magistrate erred in refusing to exercise his discretion under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) to impose a penalty without recording a conviction.Background The offence occurred at about 2 o’clock in the morning of 14 August 2010. During a night of extended drinking, the appellant and his wife went to the Palace Hotel. While there, they accepted an offer from an acquaintance to receive a lap dance in a private room of the hotel. The incident was caught on closed circuit television. During the performance the appellant and his wife were on a couch. The dancer had placed her purse under the couch prior to the dance. Towards the end of the performance the appellant got up from his position and then sat down again, within reach of the purse. While the dancer was speaking with the appellant’s wife, the appellant, rather skilfully and surreptitiously, picked up the purse and placed it under his armpit. He then took it to the hotel toilets. The magistrate was told, and apparently accepted, that the appellant was a 29 year old man of prior good character who lived with his wife and two young children, one of whom had special needs. The appellant and his wife were involved in charitable work related to that child’s disability. The magistrate accepted that the appellant had an “excellent employment history” and had held positions of trust in the various roles held since leaving school. The magistrate was prepared to treat the offence as being “somewhat opportunistic”. As I have said, notwithstanding the appellant’s prior good character, the magistrate imposed a conviction for the offence. In relation to that, the magistrate made reference to the fact that the matter had been “prolonged” and that the appellant had maintained his plea of not guilty to the end of the trial and had therefore shown no remorse. He referred – again in ex tempore remarks – to the lack of remorse being relevant to whether there was a likelihood of the commission of a further such offence. The magistrate said he thought there was “some weight in saying that you are unlikely to commit the offence again”. He went on to say that notwithstanding everything that had been put on behalf of the appellant in relation to good character, he was of the view that a conviction was appropriate.Arguments on appeal Mr Barnett, who appeared for the appellant in this Court, submitted that the magistrate erred in failing to exercise his discretion under s 16 of the Criminal Law (Sentencing) Act 1988 (SA). That section provides as follows:16—Imposition of penalty without convictionWhere 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The magistrate’s remarks on penalty occupy a little over one page. They are comprehensive. The magistrate referred in them to all the critical matters favouring the appellant and supporting his request for a disposition involving an exercise of discretion under s 16. I cannot find within them any error of approach or any error of fact. The decision as to the appropriate penalty, including whether a conviction should be imposed, was a discretionary matter. I have found no reason why the magistrate’s disposition should be set aside.Conclusion The argument that the magistrate misused the fact that the appellant had chosen to contest the charge has not been made good. The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.