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

1. 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.

2. 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.

3. 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

4. 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.

5. 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”.

6. 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

7. 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 conviction

   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.

8. Referring to s 16(a) Mr Barnett argued that the magistrate either did, or should have made an unqualified finding to the effect that the defendant was unlikely to commit such an offence again. He put that, if the magistrate did not go so far as to make that positive finding, then that was only because he had impermissibly weighed the fact that the appellant had exercised his right to contest the charge. Counsel suggested that, absent that irrelevant factor, all circumstances relating to the appellant required a conclusion that a repetition was unlikely. Mr Barnett suggested that the appellant’s character, antecedents, age and the effect that a conviction might have on his current and future employment all indicated a conclusion that good reason existed for not recording a conviction.

9. Just prior to the hearing in this Court and contemporaneous with the advice to the Court that the appeal against conviction would not be pursued, an affidavit of the appellant was filed relevant to the matter of restitution.  Apparently in the court below no specific request for restitution was made by the victim.  The appellant’s affidavit, which was received by me, attested to the fact that the appellant had, on 4 November 2011, instructed his solicitor to deliver a bank cheque in the sum of $270 payable to the victim, to the solicitors for the respondent.  Mr Barnett submitted that, if this Court found that the approach at first instance was erroneous, it should, in disposing of the matter afresh, take the payment of restitution into account.

   Analysis

10. The decision not to impose a conviction involves the exercise of a discretion. That discretion is enlivened if the preconditions set out in s 16 are fulfilled. First, the magistrate must propose to impose a fine or a sentence of community service or both. Then, the magistrate must form the opinion that the offender is unlikely to commit such an offence again. Finally, the court must consider whether having regard to the matters set out in s 16(b) there is good reason for not recording a conviction. (See generally R v Stubberfield (2010) 106 SASR 91 and Sims v Police [2000] SASC 102.)

11. As Mr Barnett acknowledged, there was a question whether the magistrate in this case formed the opinion that the appellant was unlikely to commit such an offence again.  I do not agree with counsel’s submission that the relevant opinion could not be informed, at least in part, by the determination of the appellant to contest the charge and to give evidence in his defence.  I agree with the magistrate that such conduct showed a want of contrition.  It was particularly surprising when the evidence against him included a film of the very commission of the offence.  His evidence that he had no real recollection of the events and that he did not intend to take anything which did not belong to him or to his wife was, particularly in the face of the footage, unimpressive.  As I have set out, that refusal to take responsibility for the offence continued until a time immediately prior to the hearing of this appeal.

12. Contrition and remorse have traditionally been considered to be important steps along the path to rehabilitation.  I can find no fault with the magistrate taking into account their absence.  Moreover, the magistrate was in a good position to make an assessment of the seriousness of the offence and the character of the appellant, having seen film of the incident and having heard the appellant give evidence.

13. Consequently, the appellant fails, in my judgment, to make out the second precondition.

14. 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

15. The argument that the magistrate misused the fact that the appellant had chosen to contest the charge has not been made good.

16. The appeal must be dismissed.