Dow v Police No. Scgrg-00-329

[2000] SASC 169

DOW  v  POLICE
[2000] SASC 169

Magistrates Appeal

1. DUGGAN J. The appellant was charged by way of complaint which alleged that on 1 May 1998 he had in his possession a rifle and a shotgun whilst not holding a firearms licence, contrary to s 11(1) of the Firearms Act 1977. He pleaded guilty to the offence and the learned magistrate recorded a conviction and imposed a fine of $200.

2. The appellant now appeals against the imposition of the conviction.  He has submitted that the learned magistrate should have exercised his discretion under the Criminal Law (Sentencing) Act 1988 s 16 to impose a penalty without recording a conviction. Section 16 provides as follows:

   “Where a court finds a person guilty of an offence for which it proposes to impose 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;

   (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.”

3. The complaint was sworn on 26 May 1998.  According to the affidavit evidence before me the charge arose out of an incident when police attended the appellant’s address on 1 May 1998 to serve a restraining order on him.  There were a number of attempts to serve the summons issued in relation to the complaint but they were unsuccessful until the appellant himself approached the police and raised the matter.  The police were told by the appellant that he was applying for a job which required a police clearance certificate and when he requested the certificate he was advised of the present matter which was outstanding.

4. The matter was listed for hearing at the Christies Beach Magistrates’ Court on 3 March 2000. The police prosecutor who had the conduct of the matter indicated to the appellant that the prosecution would not oppose an application under s 16 of the Sentencing Act for an order that no conviction be recorded.  There were some difficulties in obtaining the file in time for the hearing and it was then ascertained that a court would not be sitting at Christies Beach at the time of the proposed hearing.  The matter was then transferred to the Adelaide Magistrates’ Court.

5. In due course the matter was called on in the Adelaide Magistrates’ Court and the appellant pleaded guilty.  The appellant explained to the learned magistrate the circumstances in which he was charged with the offence.  He said his firearms licence had expired and he had overlooked renewing it.  He explained to the magistrate that if a conviction were recorded it would jeopardise his application for a bus driver’s licence.  He said that the prosecutor at Christies Beach had intimated that the prosecution would not oppose an order under s 16.

6. The magistrate stated that he would not exercise the power under s 16.  According to the affidavit of the police prosecutor, the magistrate referred to the fact that this was a regulatory offence.  The magistrate then convicted the appellant and imposed the fine of $200. I have been advised that there are no remarks on penalty available to this Court.

7. It would appear that the prosecution did not allege any previous convictions.  In a statement which was filed with the notice of appeal the appellant stated that he had a nervous breakdown following upon events which commenced shortly after the date of his marriage on 7 January 1998.  The events which he said precipitated his condition related to the activities of his son and an application by his sister-in-law for a restraining order against him.

8. There is some reticence on the part of the courts to invoke s 16 in the case of regulatory offences.  (Piva v Brinkworth (1992) 59 SASR 92 and Hemming v Neave (1989) 51 SASR 427.) It has been said that legislation of this kind should not be applied as freely to cases involving breaches of social legislation. In Hemming v Lukin (1996) 67 SASR 248 at 241 Doyle CJ expressed the view that, although he was cautious about applying such statements literally, “where the offence is committed regardless of any question of fault and intent one would look in the case of such an offence as a basis for leniency for positive efforts directed to preventing or avoiding the commission of the offence”.

9. There is good reason to think that the appellant is unlikely to commit such an offence again.  On the other hand that is not sufficient to attract the operation of s 16 of the Act.  The court is also required to have regard to the other provisions of s 16, which are to be found in sub-section (b) and which relate to a number of matters including character, antecedents, the physical or mental condition of the defendant, whether the offence was trifling or whether there are any other extenuating circumstances.

10. The principal contention put to the learned magistrate for invoking the power not to record a conviction was the prejudice that it might cause to the appellant’s future employment.  This is sometimes a relevant aspect, although in the events which have transpired in the present case it does not seem to have proved a problem in relation to the employment that the appellant subsequently secured.

11. The appellant has had a difficult time which commenced around about the date of the conviction but that was not a matter of particular relevance to the issue that is under consideration and it was not put to the learned magistrate in the course of submissions made by the appellant.

12. In the view that I take of the matter, although one feels sympathy for the situation in which the appellant finds himself, it has not been demonstrated that the learned magistrate erred in the exercise of his discretion and accordingly the appeal must be dismissed.