Gardner v PERSSE - [2014] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GARDNER v PERSSE
[2014] SASC 174
Reasons for Decision of The Honourable Justice Nicholson
19 November 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS
PROFESSIONS AND TRADES - LAWYERS - UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS - ACTING AS SOLICITOR
The appellant was charged with two counts of falsely holding herself out as being entitled to practise the profession of the law, contrary to s21(1) of the Legal Practitioners Act 1981 (SA). Count one related to the appellant’s alleged conduct when appearing in the Ceduna Magistrates Court, on 17 July 2012, on behalf of her brother who had been charged with regulatory (heavy vehicle) driving offences. Count two related to statements made by the appellant in a subsequent telephone conversation with a prosecutor from the Department of Transport Planning and Infrastructure in relation to those proceedings. On 20 May 2014, the appellant pleaded guilty to, and was convicted of, Count two. No evidence was tendered by the prosecution with respect to Count one.
The appellant has appealed against the Magistrate’s decision to refuse an application, made pursuant to s16 of the Criminal Law (Sentencing) Act 1988 (SA), to refrain from recording a conviction.
Held: Appeal dismissed. On the evidence, it was open to the Magistrate to not be satisfied that the appellant was unlikely to reoffend in a similar manner. Having so found, the Magistrate’s discretion to refrain from recording a conviction under s16 was not enlivened. Any further inquiry as to whether a conviction should be recorded was therefore otiose.
Legal Practitioners Act 1981 (SA) s21; Criminal Law (Sentencing) Act 1988 (SA) s15, s16, s39, referred to.
R v Stubberfield [2010] SASC 9, (2010) 106 SASR 91; Brookes v Police [2014] SASC 22; Rowland v Police (2001) 79 SASR 569; Tazroo v Police [2002] SASC 155, considered.

GARDNER v PERSSE
[2014] SASC 174
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal against the decision of a Magistrate to record a conviction following the appellant’s plea of guilty to a breach of s21 of the Legal Practitioners Act 1981 (SA) (“the Act”). The respondent is a public official with responsibility for the carriage of prosecutions under the Act.
The appellant was initially charged with two counts of falsely holding herself out as being entitled to practise the profession of the law, contrary to s21(1) of the Act. Count one related to the appellant’s alleged conduct when she appeared in the Ceduna Magistrates Court, on 17 July 2012, on behalf of her brother who had been charged with regulatory (heavy vehicle) driving offences. Count two related to statements made by the appellant to a prosecutor from the Department of Planning, Transport and Infrastructure (“DPTI”) in a telephone conversation, on 31 July 2012, regarding that same matter.
On 20 May 2014, the appellant entered a plea of guilty to Count two and the prosecution tendered no evidence with respect to Count one. On 30 July 2014, the appellant was fined $800, reduced from $1,000 on account of the late guilty plea. The appellant was also ordered to pay prosecution costs and associated court fees. A conviction was recorded.
The Magistrate refused an application, pursuant to s16 of the Criminal Law (Sentencing) Act 1988 (SA), to refrain from recording a conviction. In the Amended Notice of Appeal, the appellant contends that the Magistrate erred by taking into account irrelevant matters or alternatively misconstruing those matters and, in particular: (i) by having regard to the appellant’s conduct which formed the basis of the withdrawn Count one, and (ii) by relying on a purported “suggestion” by counsel for the respondent that the appellant is a person likely to re-offend in a similar manner.
Background facts
The appellant was born in Naracoorte on 11 March 1961 and is 53 years of age. After finishing high school, the appellant worked in various locations, including as owner of a recruitment business which she conducted in Alice Springs in the late 1980s. At the time of sentencing, she was working as a personal assistant in a real estate firm in regional South Australia. The appellant wishes to gain accreditation as a real estate agent at some time in the future. It is largely for this reason that the appellant wants this matter to be resolved without the recording of a conviction.
A number of years ago, the appellant started a law degree which she did not complete. The appellant has never held a practising certificate allowing her to practise law in this or any jurisdiction.
The appellant has one brother, MJ. On 17 July 2012, in the Ceduna Magistrates Court, MJ was being prosecuted by the DPTI for alleged heavy vehicle driving offences. At the commencement of the hearing, the DPTI prosecutor sought leave to appear as a non-lawyer. The appellant, who had come to assist her brother, did not seek leave. In subsequent discussions with the prosecutor that day the appellant introduced herself as being from a firm called Johnson Gardner & Associates; nothing was said about the type of work that firm engaged in. It was this conduct, in essence, which formed the particulars for Count one, being the count that was ultimately withdrawn.
On 30 July 2012, the appellant received a voice message from another DPTI prosecutor, a Mr Petrie, asking that she return his call to discuss the matter. Mr Petrie was not then aware that the appellant was related to MJ. The appellant returned Mr Petrie’s call on the morning of 31 July 2012. During that conversation, Mr Petrie said to the appellant that he had been trying to contact her for some time but had been unable to do so because she was not listed on the roll as a practising solicitor. He then asked the appellant if she had a current practising certificate. The appellant said that she did. He enquired as to whether the appellant was listed under another name. The appellant said that she had been listed as “Gardner” for some time and that she would contact the Law Society and seek to have any error rectified. It was this conduct, through which the appellant held herself out as entitled to practice law, that formed the basis of the second count to which the appellant pleaded guilty. Section 21(1) of the Act provides:
(1)A natural person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless the person—
(a) is a local legal practitioner; or
(b) is an interstate legal practitioner.
Maximum penalty: $50 000.
On 5 June 2013, the appellant was interviewed by an investigations officer from the Attorney-General’s Department in relation to her alleged misconduct. The appellant admitted that she had never been enrolled to practise law and had never obtained a practicing certificate. She said that she had attended at the Ceduna Magistrates Court on 17 July 2012 to act as an advocate for her brother. The appellant conceded that she did not seek leave to appear as a non-solicitor as the prosecutor had done. The appellant told the prosecutor that she was with the firm Johnson Gardner & Associates and acknowledged that the prosecutor may have assumed that she was a legal practitioner and appearing in that capacity. She said she had not intended to give that impression.
During the interview, the appellant was unable to recall much of what was said during her telephone conversation with Mr Petrie on 31 July 2012. Her answers concerning whether she told Mr Petrie that she had a practising certificate were ambiguous and conflicting. Initially, she said she didn’t think she told Mr Petrie that she had a current certificate to practise law in South Australia as she was “usually very very careful about that”. However, she later said that she may have told Mr Petrie that she had such a certificate because she felt implicated by her brother having asked her to appear for him. She felt that she had been “caught up in that form of deceit”. The appellant said that, at the time of her conversation with Mr Petrie, she was feeling “under the pump” because she was trying to protect her brother and did not want to let him down and, also, because she was due to fly out overseas later that day.
The Magistrate’s Reasons
According to the Magistrate’s Remarks on Penalty,[1] her Honour had regard to the nature of the appellant’s offending and the fact that the offence was of a type that can be difficult to detect and that can have adverse consequences for innocent persons. However, the Magistrate also noted that, in this case, there had been no resultant financial loss or perversion of justice, that the appellant’s conduct was motivated by a desire to assist her brother who, apparently, did not have the financial resources to retain legal advisors and that the appellant did not seek nor receive any financial gain.
[1] Police (sic) v Gardner, Remarks on Penalty, 30 July 2014, AMC-13-11481.
The Magistrate summarised, in some detail, the personal circumstances of the appellant. The appellant has been battling cancer for a number of years. After having been in remission for quite some time, she was diagnosed with breast cancer earlier this year and had recently completed a course of treatment. She was the subject of a domestic violence assault in 2010 and suffered a quite severe head injury. The appellant was due to appear in court as a witness in relation to that incident in December of this year. The assault has left the appellant with an ongoing fear for her safety. The Magistrate noted counsel’s submission that it was in this context that the offending took place.
The Magistrate explained the extent to which the appellant’s earlier alleged conduct, on 17 July 2012, was relevant:[2]
I bear in mind the submissions made by your counsel concerning the conduct previously alleged in count 1 and how that conduct ought to be regarded. I proceed on the basis that you are guilty only of the charge in count 2 which you have admitted. I also proceed on the basis that the admitted conduct in count 2 is to be viewed in the context of the conduct that you accept took place on 17 July 2012.
[2] Remarks on Penalty at [12].
Earlier in the Remarks the Magistrate had described the 17 July 2012 conduct, as conceded, as “the background to the offending”[3] and the conduct on 31 July 2012 as forming “the basis of the charge”.[4] Her Honour also observed that “the earlier conduct which I have referred to is relevant as an explanation for what followed”.[5]
[3] Remarks on Penalty at [2].
[4] Remarks on Penalty at [3].
[5] Remarks on Penalty at [7].
In the context of her consideration of whether to impose a conviction, the Magistrate referred to a submission purportedly made by counsel for the respondent regarding the appellant’s likelihood of re-offending:[6]
As to the question of whether a conviction should be recorded in these circumstances, counsel for the [respondent] submitted that the court could not be confident that you will not re-offend. It is further submitted that the penalty effect of the imposition of a conviction ought not to be overlooked and that this offence is a regulatory offence.
[6] Remarks on Penalty at [19].
The Magistrate apparently agreed with this. She concluded her consideration of whether or not to record a conviction thus:[7]
I have thought very carefully about the question of whether or not a conviction should be recorded here. I am not confident that you are unlikely to re-offend in the future. Having considered all of the material before me, together with the submissions from counsel, the relevant law on this topic, as well as the provisions of s.16 of the Criminal Law Sentencing Act, I am of the opinion that there is no good reason for not recording a conviction today.
I have considered the application of s.39 of the Sentencing Act in the present circumstances although neither counsel has addressed me on it. Having considered the application of the circumstances to this provision as well, I find that there is no relevant good reason to proceed to bond without conviction under that section either and I decline to do so.
Did the Magistrate err by relying on the appellant’s conduct on 17 July 2012, the subject of the withdrawn Count one?
[7] Remarks on Penalty at [24]-[25].
The appellant submits that the Magistrate should not have allowed that conduct to inform her decision as to whether or not a conviction should be recorded because the charge had been withdrawn and its factual basis was therefore irrelevant.
The original complaint and summons alleged that the appellant offended on two separate occasions. The first (withdrawn) count was in the following terms:
On 17 July 2012 in Ceduna, in the State of South Australia, the defendant held herself out as being entitled to practise the profession of the law, when the defendant was not a local legal practitioner or an interstate legal practitioner.
Contrary to section 21(1) of the Legal Practitioners Act 1981
This is a summary offence.
Particulars
1.1The defendant has never been a local legal practitioner or an interstate legal practitioner.
1.2 At all material times [MJ], the defendant’s brother, was being prosecuted by the Department of Planning, Transport and Infrastructure (“DPTI”) for breaches of the Road Traffic Act 1961.
1.3 On 17 July 2012 the defendant attended with [MJ] in the Ceduna Magistrates Court in relation to the prosecution described in particular 1.2 which was listed before the Court that day.
1.4 On 17 July 2012, the defendant
(a)     told Jarrad Kevin Murphy, Prosecutor for DPTI, that she was representing [MJ];
(b)     negotiated with Murphy as to [MJ’s] liability in relation to the charges;
(c)     negotiated with Murphy as to how the matter should proceed;
(d)     did not seek leave to appear when she appeared in Court;
(e)     told the Court that she was representing [MJ]; and
(f)     in speaking with the court, referred to [MJ] as “her client”.
The copy of the Complaint and Summons on the lower court file has a line ruled through Count one and its particulars and the date 20 May 2014 is recorded as are, what I infer to be, the Magistrate’s initials.
When sentencing for Count two the Magistrate had before her these particulars of Count one and the whole of the record of interview, earlier referred to, including the various admissions by the appellant as to her conduct on this earlier occasion.
It is the common experience of criminal sentencing courts in this State to be made aware of information potentially prejudicial to an accused. It is common for Magistrates, in particular, to deal with matters involving a number of allegations, one or more of which ultimately do not proceed. Nevertheless, sentencing courts are obliged and expected to take account of relevant factors only and to ignore or not be influenced by irrelevant factors. In this case the appellant was to be sentenced only for her conduct on 31 July. The events of 17 July were plainly material as background, in this case, by way of explaining and permitting an understanding of the nature of the exchange between Mr Petrie and the appellant during the telephone conversation on 31 July.
The Magistrate was acutely conscious of this issue, as can be seen by the various references to it in her Honour’s remarks as identified earlier. There is nothing in the Remarks to suggest that her Honour made improper use of the background material. In any event, the appellant’s admissions concerning aspects of the 17 July allegations were material in a way I explain later in these reasons.
Did the Magistrate err by refusing to proceed without recording a conviction?
The Magistrate considered dealing with the appellant, in accordance with the discretion available under s39 of the Sentencing Act, by imposing a bond requiring the appellant to be called up for sentence in the event of breach. However, her Honour determined instead to enter sentence then and there by imposing a fine. There is no challenge to this exercise of discretion. As such, the only basis on which a conviction might not have been recorded was that provided for by s16 of the Sentencing Act.[8]
[8] It was not argued before the Magistrate that the offending was "so trifling" as to enliven the discretion available under s15 of the Sentencing Act.
Pursuant to s16 of the Sentencing Act, a court has the power to impose a penalty without recording a conviction in certain circumstances. Whilst the decision not to record a conviction is ultimately discretionary, a number of statutory preconditions must first be satisfied before the power to do so is enlivened.[9] Section 16 provides as follows:
[9]    See R v Stubberfield [2010] SASC 9, (2010) 106 SASR 91 at [40]- [41] (the Court: Gray, Sulan and David JJ).
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
The first statutory pre-condition was satisfied when the Magistrate determined to impose a fine of $800. However, before exercising the discretion whether or not to record a conviction, the Magistrate had to satisfy herself of a second pre-condition, that is, that the appellant was unlikely to commit such an offence again.
This is not, itself, a discretionary consideration. It is an opinion that must be arrived at, a finding of fact that must be made, before the discretion can be exercised.[10]
[10] See the discussion in Brookes v Police [2014] SASC 22 at [7]-[9].
Although it is not entirely clear from the Remarks on Penalty, it would appear that the Magistrate did not form the requisite opinion. Her Honour said “I am not confident that you are unlikely to re-offend in the future.” However, and notwithstanding that apparent finding, her Honour went on to explain why she was of the opinion that good reason for not recording a conviction did not exist.
Given, as it would appear, that the Magistrate was not satisfied that the appellant was unlikely to commit such an offence again, any further inquiry under s16 was otiose. Indeed, to thereafter go on and have regard to this consideration when exercising the discretion was itself an error.
The immediate question before me on this appeal is whether her Honour erred in failing to find that this threshold requirement under s16(1)(a) had been met. If so, the discretion whether or not to record a conviction would have to be exercised afresh but on the basis that the appellant was unlikely to re-offend in this way.
Where a Magistrate’s finding of fact (or failure to find a fact) is challenged on appeal, the appeal court must undertake an independent review of the evidence and reach its own conclusion after giving due weight to the Magistrate’s advantage gained by seeing and hearing any witnesses.[11]
[11] Rowland v Police (2001) 79 SASR 569; Tazroo v Police [2002] SASC 155.

The appellant argued that the Magistrate mistakenly had regard to a purported submission said to have been made by the respondent to the effect that the Court could not be satisfied that the appellant was unlikely to re-offend. On the basis of the affidavit evidence read at the appeal, it may well be that a submission in these terms was not put on behalf of the respondent. However, whether or not such a submission was put by respondent is largely immaterial. Once the discretion under s16 fell to be considered, it was inevitable that the Magistrate would have to determine this question and do so for herself notwithstanding any submissions made or not made on the topic.
Her Honour did not specifically state her reasons for not being “confident that [the appellant was] unlikely to re-offend in the future”. However, evidence concerning the following matters which bear on that issue was before the Magistrate and addressed in the Remarks.
(i)those aspects of the events of 17 July 2012 at the Ceduna Magistrates Court admitted by the appellant;
(ii)the particulars of the offending on 31 July 2012 to which the appellant pleaded guilty;
(iii)the dissembling nature of some of the answers given to Mr Petrie on 31 July 2012;
(iv)the type of work that the appellant will continue to be engaged in which would seem to provide opportunity for further such misleading behaviour;
(v)the fact that, at the time, the appellant did not think her conduct was inappropriate; and
(vi)the fact that in the course of her work the appellant communicates with lawyers quite often and that her letterhead refers to “mediation, relationship management and other things”.
In any event, the onus is on a person in the position of the appellant to demonstrate, on balance, that they are unlikely “to commit such an offence again”. The nature of the offending and the circumstances of the offending here are such that this is not an easy onus to discharge. There is a significant element of dishonesty and opportunism to this type of offending which, to a certain degree, speaks of a person’s character. As such, an assertion that such conduct will not occur again is to be viewed with caution. Furthermore, as the Magistrate observed, this type of deception is not easily detectable. The fact that the appellant has no prior convictions for this type of offending is to be viewed in this light.
The fact that the appellant behaved on the earlier occasion in the Ceduna Court, in the way and to the extent admitted, is a relevant consideration here. It is true, as earlier discussed, that the appellant is only to be sentenced for Count two. Nevertheless, when considering the likelihood of re-offending, a person’s character and past conduct can be a guide. For example, a person’s prior criminal record or past character as, say, disclosed to a reporting clinical psychologist, can be taken into account when assessing rehabilitation prospects and on the question of leniency generally. However, this does not mean that the person is being sentenced (again) for that prior conduct.
The question on appeal is whether a particular approach to sentencing for Count two (the s16 discretion) akin to the exercise of leniency was or was not available. It would be quite artificial to ignore material aspects of the appellant’s previous conduct simply because, whilst admitted, they have not been found to constitute an offence for which she is to be sentenced. It is a subtle distinction but one that must be drawn and applied where an offender seeks the indulgence offered by s16.
I have reviewed the evidence available to the Magistrate on this issue. It was open to the Magistrate to find herself not satisfied of the threshold requirement that the appellant was required to establish. I see no reason to disturb that conclusion.
Conclusion
In these circumstances, the discretion under s16 not to record a conviction is not enlivened. The questions of whether or not the Magistrate properly exercised the discretion or how this Court would exercise the discretion whether or not to record a conviction do not arise. The appeal is dismissed. I will hear the parties as to any consequential orders.