Coyle v Police No. Scciv-00-1259

COYLE v POLICE
[2001] SASC 43

Magistrates Appeal (Criminal)

OLSSON J

Introduction

In this matter the appellant appeals against a conviction recorded against him by a stipendiary magistrate, consequent upon his entry of a plea of guilty to a charge that, on 22 July 1999 at Enfield, without reasonable cause, he threw a syringe, so as to be likely to frighten, injure or annoy a person, contrary to s 51(1) of the Summary Offences Act, 1953.
Although, in form, this appeal is necessarily expressed to be an appeal against conviction, it is, in reality, an appeal against sentence. The fact that, on the occasion in question, the appellant committed the offence charged and the relevant circumstances giving rise to the offence have never been in issue.
Having received the plea of guilty and heard submissions from counsel on behalf of the appellant, the learned magistrate elected to proceed pursuant to the provisions of s 39 of the Criminal Law (Sentencing) Act 1988. In doing so she opted to record a conviction, but ordered that the appellant be released upon entering into a bond of $200 to be of good behaviour for a period of one year - a condition being that he keep the peace towards the victim of the offence.
The appellant complains that, in all of the circumstances, it was inappropriate to record a conviction against him; and that the brief remarks as to sentence which were expressed indicate that the learned magistrate either did not fully understand the submissions put to her, or did not properly consider the issue of whether a conviction should, or should not, be recorded. It is also complained that no reference was made to this issue at all, in the remarks as to sentence; and that no reasons were therefore expressed for the rejection of the possibility that a conviction not be recorded. The appellant also contends that the learned magistrate proceeded upon a basis of fact which was not open on the material before her.

The circumstances of the offence

The narrative facts giving rise to the offence are bizarre.
Initially the victim resided next door to the defendant at Clearview. From time to time the former found discarded syringes on his property, but could not discover their source.
In March 1999 the victim moved to new premises not far from his former residence. However, the rear of the new premises abutted a public car parking area associated with the Enfield Community Centre.
From about Easter 1999 he again found discarded syringes about his new home, in a variety of locations, including the front and rear yards, as well as in the letter box. These had exposed needles and contained a small quantity of opaque fluid.
Because such syringes were most frequently discovered in the rear yard, the victim and his brother in law kept the area under observation.
Ultimately they saw the appellant’s car exit the car park, not long after a male was seen to throw a syringe into the victim’s rear yard, over the back fence. Police were notified, but, on interview, the appellant declined to answer questions and the matter could not be taken further.
However, at about 10.10 pm on 22 July 1999, the appellant was positively detected throwing another syringe over the back fence into the victim’s yard.
It is scarcely surprising that the conduct of the appellant was a matter of considerable concern to the victim and his family, given the number of syringes and their unknown contents.

The appellant’s profile

The appellant is a man aged 51 years. He is said to be a disability pensioner of very limited means. He has no relevant prior convictions and evidence placed before the learned magistrate indicated that, until his recent conduct, he was regarded as a person of excellent character.
The appellant was employed by the Australian National Railways until that employment was terminated on 15 July 1988.
According to a medical report written by Dr Keith Le Page, a specialist psychiatrist, the appellant has consulted him since 24 June 1992. By 21 October 1992 he had been diagnosed as suffering from a severe personality disorder, with paranoid anxiety.
Dr Le Page reports that the appellant’s condition has not since altered in significant degree and he experiences feelings of persecution, particularly at the hands of his neighbours - specifically the victim and his family. In the course of his report, which was placed before the learned magistrate, the doctor had this to say:-
“Mr Coyle lives a very restricted and circumscribed life, and has virtually no interests outside of the home and his excursions away from home are virtually confined to shopping and visiting his aged and sick parents in the country at intervals.
Because of his largely vegetative lifestyle and his very sensitive and restricted personality, he tends to ruminate about real or imagined slights against him.
I would regard this aberrant behaviour as being a function of his chronic mental illness and, as you will note in my previous letter, he has had some quite severe nervous breakdowns.”
In making submissions to the learned magistrate in mitigation of penalty the appellant’s counsel stressed that his client had no antecedent record and had been employed as a clerk in the railways for 21 1/2 years, although constantly plagued by a stress and anxiety disorder. This is said to have stemmed from the conduct of an authoritarian and dominant mother, who constantly repressed any exhibition of affection. His bizarre conduct was associated with his psychiatric condition as described in the report of Dr Le Page and the development of a great sense of grievance against the victim, who was alleged to have frequently and noisily worked on cars into the night.
It is said that the learned magistrate spoke in a soft voice and counsel, who has some hearing difficulty, did not hear her mention a conviction, or that she took it that the victim had been driven to move house. Counsel later wrote to the magistrate’s clerk, when he was informed that a conviction had been recorded. He says that he was advised by the prosecutor that an application to set aside the conviction would not be resisted.

The Magistrate’s decision

I assume that this matter was probably disposed of on a busy general list day.
Whether that be so or not, the learned magistrate expressed somewhat economic remarks as to penalty. She said:-
“Defendant in imposing penalty in this matter I take into account your early plea. I take into account the facts of the matter which relate to your clandestinely littering the premises - front and back yard, letterbox and nature strip of your neighbour Mr John Clark with syringes. Mr Clark was driven to move house but when you ascertained his whereabouts you re-commenced this activity. These facts and circumstances must have been horrendous for Mr Clark. However your counsel Mr Harradine has told me something of your background and your personal problems as ventilated in the report of Dr Page [sic]. I take into account the contents of that report and the personal references in support from five people. In the light of the submissions in mitigation of penalty and that there are no prior convictions, in my view it is appropriate to deal with the matter by way of a bond.
Upon conviction you will be released upon entering into a recognizance in the sum of $200 to be of good behaviour for a period of one year. A condition of the bond is that you keep the peace towards John Clark.
There are court fees of $82, a levy of $28 and prosecution fees of $16.

Issues on the appeal

Having noted the content of the grounds of appeal, the learned magistrate has reported to me that it is her recollection, borne out by other documentation on file, that no submission was made to her that no conviction be recorded. That tends to be borne out by counsel’s own affidavit, which falls far short of asserting that a positive submission was in fact made. She comments that, nevertheless, she did turn her mind to the issue, but considered that, in all the circumstances and on the facts and material before her, she could not be satisfied that the defendant was unlikely to re-offend, ie on the evidence the s 16 discretion was not enlivened.
Although some criticism has been advanced of the reference by the learned magistrate to the victim having been driven to move house by the appellant’s conduct - it being said that there was never any evidence or prosecution assertion to that effect - the essential thrust of the appeal submissions was that some misunderstanding arose. It was asserted that the learned magistrate did not appreciate that she was being requested not to record a conviction and did not adequately consider such a sentencing strategy; and that, in any event, she did not express any reason for not invoking s 16 of the Criminal Law (Sentencing) Act, 1988.
The short riposte to the original expressed grounds of appeal is that there does not appear to me to be the slightest doubt that, whether due to oversight or for some other reason, counsel for the appellant did not, in fact, ask the learned magistrate to refrain from recording a conviction. Moreover, absent such a request and given the facts put to her, there is no apparent reason why, in the normal course of sentencing deliberations, she could fairly have been expected, seriously, to turn her mind to such a possibility.
In the course of his submissions Mr Harradine, of counsel for the appellant, strenuously argued that, quite apart from the lack of evidence to support a conclusion that the conduct of his client had driven the victim to move from Clearview to Enfield, the learned magistrate, in her expressed reasons, had both arrived at factual conclusions not justified by the material before her and also misapplied those conclusions.
It was put that there was no basis on which it could properly have been concluded that the appellant had been responsible for the placement of any of the syringes found at Clearview, or other than those found on perhaps two occasions at Enfield. He further submitted that, in any event, it was inappropriate to arrive at sentencing conclusions on the basis of a consideration of other possible offences.
These contentions may be disposed of quite briefly.
In the first place it is to be borne in mind that s 6 of the Criminal Law (Sentencing) Act specifically provides that, for the purpose of determining sentence, a court is not bound by the rules of evidence and may inform itself on matters relevant to the determination as it thinks fit.
It was Mr Harradine himself who placed a lengthy report by Dr Le Page before the learned magistrate and invited her to take cognizance of its contents. As Mr Nicholas, of counsel for the respondent, pointed out, that report expressly recites the appellant’s own concessions that it was he who was responsible for all of the incidents at Clearview and explains how and why he conceived the idea of doing what he did. Further, the plain inference from the report, coupled with the description of how the appellant was ultimately detected as the offender at Enfield, was that he was similarly responsible for what occurred there.
True it is that the appellant was to be sentenced only for the offence actually charged, but the past history of his behaviour was highly relevant on two bases. It served to illustrate that the offence charged was no isolated act, but part of what had been a persistent, ongoing course of conduct. Further, when considered in concert with the other content of the psychiatric report, it was very pertinent to the issue of whether it was likely that the appellant would re-offend.
It had to be borne in mind that the appellant’s vendetta against the victim had continued over a lengthy period of time. Dr Le Page reported that his condition was a severe one and had “remained much the same during the last eight (8) years ...”. The report does not suggest any recent improvement in that condition and a significant feature of it is a singular lack of identification of any contrition.
The only relevant comment in that regard is the statement:
“He said that he used to feel a sense of guilt each time he did these things when he was in a fit of rage and would also have a shower afterwards, in order to cleanse himself”.
In short, there is nothing in the report to afford any ground for concluding that further offending is unlikely. Indeed, the only logical assessment is that made by the learned magistrate - the contrary is the more likely.
This was far from being a trivial offence. On the contrary, even having regard to the relevant mitigating factors, it was not without its quite serious features. Bearing in mind widespread current community fears concerning a potential to develop HIV consequences from needlestick injuries the comment of the learned magistrate that the situation must have been horrendous for the victim was plainly well founded.
It is to be remembered that Dr Le Page expressed the view that the offending behaviour was “a function of [the appellant’s] chronic mental illness”, which involves a condition of paranoid anxiety. That is scarcely a sound basis for a conclusion pursuant to s 16(a). His obvious strong, continuing antipathy towards the victim is a cause for concern as to the future.
As earlier indicated, I recognise that the submissions to the learned magistrate may not have justified her inference that the appellant’s conduct actually drove the victim to shift house. However, I fail to see how that had any appreciable influence on her ultimate decision.
She actually dealt with the appellant in a very merciful fashion and, on the situation as it stood before her, it is difficult to see how she could fairly have proceeded in a fashion which was more lenient than the course actually adopted.
It is stating the obvious to say that a pre-requisite to invoking s 16 of the Criminal Law (Sentencing) Act 1988 is a justified finding that “the defendant is unlikely to commit such an offence again”. The learned magistrate was unable to make that finding and I am quite unpersuaded that such a conclusion was not fairly open to her.
Even if I am incorrect as to that, the section further requires a conclusion that, having regard to:-

.the character, antecedents, age or physical or mental condition of the defendant;
.the fact that the offence was trifling; or
.any other extenuating circumstances

good reason exists for not recording a conviction, then the court may exercise a discretion not to do so.

As I have said, the offence was by no means trifling, and it was committed after the police had already questioned the appellant concerning an earlier similar incident. He was plainly aware that conduct of this type was in breach of the criminal law - but this did not deter him from a continuance of it.
Given his clear prior record, apparent good character and personal mitigating circumstances, there may have been some initial attraction in an argument based on either his personal background or extenuating circumstances. However, the essential problem remains that this was a deliberate and pre-meditated course of conduct, the enormity of which may not, even now, truly be appreciated by the appellant, to the point of deterring him from future misconduct. The report of Dr Le Page gives no cause for complacency in that regard.
Whilst I have reflected carefully on all that has been put to me by Mr Harradine I can see no reason for interfering in this matter. Had I been in the position of the learned magistrate I would, inevitably, have arrived at the same ultimate conclusion. It seems to me that the recording of the conviction is the only likely means of bringing home to the appellant that conduct of the type in question cannot and will not be tolerated.
The appeal must be dismissed.

[2001] SASC 43

1 March 2001