Cuthbert v Police No. Sccrm-02-1795

CUTHBERT v POLICE
[2003] SASC 55
Magistrates Appeal

BESANKO J: This is an appeal pursuant to s 42 of the Magistrates Court Act 1991.
The appellant was charged with the assault of another female on 25 May 2002 at Gawler. Section 39(1) of the Criminal Law Consolidation Act 1935 (“CLCA”) provides that the penalty for the offence is a term of imprisonment not exceeding two years. The offence is a summary offence.
The appellant appeared before the Magistrates Court sitting at Elizabeth on 12 November 2002. She was unrepresented. She pleaded guilty to the charge. The Magistrate recorded a conviction and imposed a fine of $400, together with other costs.
The appellant appeals to this Court, and the appeal is based on three grounds. First, it is argued that the sentencing process had miscarried because the Magistrate erred in failing to advise the appellant of her right to seek a penalty without conviction pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (“CLSA”). Secondly, it is argued that the penalty is manifestly excessive having regard to the penalty imposed on another participant in the assault. Thirdly, it is argued that this Court should receive fresh evidence, and that having regard to that fresh evidence the penalty is manifestly excessive.
I received a number of affidavits on the hearing of the appeal. The affidavits were received without objection. The first affidavit is an affidavit of the appellant sworn on 20 December 2002. That affidavit deposes to matters relevant to the hearing on 12 November 2002, and matters which were not put before the Magistrate. Secondly, I received an affidavit from a Mr Andrew Halford who is a police prosecutor, and who represented the police at the hearing before the Magistrate. That affidavit deposes to matters relevant to the hearing before the Magistrate. Thirdly, I received an affidavit from Mr Peter Christopher Ryan who is the solicitor for the appellant. Mr Ryan attached to his affidavit a letter from the appellant’s employer to the effect that a conviction for assault would impede the appellant’s ability to seek and gain promotion with her employer.
After hearing submissions from counsel for each party, I made an order that the appeal be allowed and that the conviction recorded by the Magistrate be set aside. I made an order that the fine of $400 imposed by the Magistrate be set aside. I further ordered that pursuant to s 16 of the CLSA a penalty be imposed, being a fine of $300. I made an order that the respondent pay the appellant’s costs of the appeal fixed at $165. I indicated that I would deliver my reasons at a later date. My reasons follow.
The Facts as put to the Magistrate
The Magistrate advised the appellant of her right to obtain legal representation. I reject any suggestion to the contrary. The appellant told the Magistrate that she wished to proceed with the matter. The charge was read and a guilty plea was entered.
The prosecutor made submissions to the following effect.
“Your Honour, on Saturday 25 May 2002, at the Southern Hotel, Gawler, the defendant and two other females, including Kyan Burns, assaulted the victim. The victim stated that at about 10:30PM both she and a friend were coming out of the toilets when she was approached by three females including the defendant. After words were exchanged, the victim was assaulted by the girls, including the defendant who pulled her by the hair. The victim fell to the ground and Burns assaulted her further. The victim blacked out and was taken to the Gawler Health Service by ambulance, where she spent the night. She complained of a severe headache, damaged front teeth and general soreness. When interviewed by police, the defendant made full and frank admissions, stating that she ‘pulled the victim by the hair because it was a fight and she had a fair bit to drink and it all got out of hand’.”
The prosecutor told the Magistrate that the defendant had no prior criminal history. The prosecutor said in his affidavit that he is unable to recall if any further conversation took place between the Magistrate and the appellant after the facts were alleged.
Earlier that day a charge laid against Kyan Burns was heard. Ms Burns pleaded guilty. She was convicted and a fine of $500 was imposed.
Some time after the appellant’s matter was dealt with, she asked for the matter to be called back on and adjourned. The Magistrate refused to adjourn the matter and advised the appellant that the correct procedure was to lodge an appeal.
In her affidavit, the appellant states that the police prosecutor told the Magistrate when her matter was called on that it was the same matter as previously (ie., the charge against Ms Burns). The Magistrate said that there would be a lesser fine as Ms Burns had prior convictions. The appellant told the Magistrate that the victim had approached her, but she did not tell him of the history of the matter. She admitted pulling the victim’s hair. The Magistrate asked the appellant if she was employed, and the appellant told the Magistrate that she was a Checkout Operator. The appellant states that she became very distressed after her matter had been dealt with and asked for it to be called on again. It was called on again and she then asked for a lawyer. The Magistrate told her that the matter had been finalised and that it was up to her if she wanted to engage a lawyer for the purpose of lodging an appeal.
The Alleged Failure to Advise
Section 16 of the Criminal Law (Sentencing) Act 1988 provides:
“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.”
In Cooling v Steel (1971) 2 SASR 249, Wells J discussed the obligations on a Magistrate dealing with a charge against an unrepresented litigant. Wells J said (at 251):
“If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has the power to impose disqualification from holding or obtaining a driver’s licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court.”
His Honour also said:
“In general, the court should ensure that the defendant is apprised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
In McQuade v Police [1999] SASC 277, Martin J heard an appeal from a Magistrate who had convicted a defendant after a plea of guilty of charges of assault occasioning actual bodily harm, common assault and damaging household furniture. One of the grounds of appeal was that the Magistrate failed to advise the appellant of his right to apply to the Magistrate for the exercise of the discretion not to record a conviction. In the course of his reasons for allowing the appeal, Martin J said:
“In my opinion, this was a case where consideration should have been given to the possibility of not recording a conviction. The appellant should have been advised of the availability of that option and of his right to ask the Court to exercise its discretion in the matter. It is unclear whether his Honour considered that option, but there is no dispute that the appellant was not advised of it. …
In my opinion, in the quite special circumstances of this matter, it was an error in the sentencing process not to advise the defendant of the option to ask that a conviction not be recorded. Further, it seems probable that the Magistrate did not seriously address that question.”
As Martin J makes clear in his reasons, the particular circumstances of that case were important in terms of the conclusion set out in the above passages. In Taylor v Police (4 February 1998, SASC 6540, unreported) Bleby J held that the proceedings in that case had miscarried because the appellant had not been informed of her right to give evidence on oath to support a finding that the offence was trifling (see s 46(3)(b) of the Road Traffic Act 1961). In Datson v Police [1999] SASC 59, Nyland J reached a similar conclusion in the circumstances of that case.
In this case, the Magistrate knew that the appellant’s role in the assault was to pull the victim’s hair. He knew that when she was interviewed by the police, she made full and frank admissions. He knew that the appellant had no prior convictions. He knew that the appellant was a young person who was employed as a Checkout Operator. He had previously convicted another participant in the assault whose role was more serious. In that case he had imposed a fine of $500. That defendant had prior convictions.
In my opinion, in considering what “options” a Magistrate should raise with a defendant it is important to have regard to the particular circumstances of the case. The circumstances of this case were such that I think the Magistrate should have advised the appellant that she could ask the Court not to record a conviction under s 16 of the CLSA. That may well have resulted in the appellant placing before the Court the material she now puts forward as fresh evidence. The Magistrate did not advise the appellant of that option and as a result the sentencing process has miscarried.
Was the Penalty Manifestly Excessive in Light of the Material Before the Magistrate?
If consideration is restricted only to the material before the Magistrate, I do not think the penalty he imposed was manifestly excessive. It may be that the penalty imposed on Ms Burns was particularly lenient, but I do not think that the disparity is such that the penalty imposed on the appellant was manifestly excessive. Nor was it manifestly excessive when regard is had to the penalty provided in the section, and the nature and circumstances of the offence as known to the Magistrate.
Fresh Evidence
The appellant had, prior to the matter in question, never received a summons to attend court. She is nineteen years of age and she resides with her parents. She is employed by Woolworths at a supermarket in Gawler. She has been employed by Woolworths for the last three years. She is a Checkout Operator, and she is now fourth in charge on the floor.
Prior to the commission of the offence the appellant had known the alleged victim for a number of years. They had been good friends for approximately three years. The appellant terminated the friendship late in 2001. There were then a series of incidents whereby the victim allegedly threatened the appellant. Property was stolen and damaged. I will not set out the details.
Before the assault, the appellant was confronted by the victim who abused her. There was pushing and shoving, and the appellant pulled the victim’s hair. A third person kicked the alleged victim in the face and loosened a tooth.
The appellant subsequently spoke to a local police officer about whether she could lay a complaint about the way in which she had been treated. The police officer told her that she should plead guilty and not seek legal advice. He told her that the circumstances of the kick were unrelated, and that that matter would not be put before the Court.
The appellant did not tell the Magistrate about the history of the matter because of what she had been told by the police officer.
A letter from the appellant’s supervisor at Woolworths states that if a criminal conviction for assault remains on the appellant’s record, then that would impede her ability to seek or gain promotion within the company.
In R v Brain (1999) 74 SASR 92 the Court of Criminal Appeal considered an appeal against sentence. Fresh evidence was put before the Court by consent. Doyle CJ considered what approach the Court should take in deciding whether to allow the appeal having admitted fresh evidence (at 105 – 107). The Chief Justice said:
“In the present case I am satisfied that, if the sentence were considered afresh, the further material warrants the imposition of the lesser sentence than that imposed. I am also satisfied that if the further material had been before the sentencing judge, at the least he would have fixed a lower non-parole period than that that he fixed. I am satisfied, if it be necessary, that in the light of the further material it can be said that the original sentence is, to that extent, manifestly excessive. Accordingly, it is appropriate for the Court to intervene. The question of the precise basis upon which the Court acts can be left for another day.”
In this case the fresh evidence was admitted by consent. It is unnecessary for me to consider the precise basis upon which the Court acts. Having regard to the fresh evidence, I am satisfied that it warrants the imposition of a lesser sentence than that imposed. I am also satisfied that if the fresh evidence had been before the Magistrate he would have fixed a lower penalty than that which he fixed. I am also satisfied (if it be necessary) that in light of the fresh evidence it can be said that the original sentence is, to that extent, manifestly excessive.
In my opinion, it is appropriate to utilise the power in s 16 of the CLSA 1988 to impose a fine without recording a conviction. I am satisfied that the appellant is unlikely to commit the offence of assault again. I am satisfied that good reason exists for not recording a conviction. The appellant is of good character. She does not have any prior convictions. She is a young person who holds a fairly responsible position in terms of her employment. There were extenuating circumstances surrounding the assault. There was a degree of provocation, and the appellant’s role in the assault was not a serious one.
It was for these reasons that I allowed the appeal and made the orders which I have previously set out.

[2003] SASC 55

21 February 2003