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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gardner v PERSSE

Details

AGLC: Gardner v PERSSE [2014] SASC 174
Case: [2014] SASC 174
Decision Date: 19 November 2014

CaseChat Overview and Summary

The case of Gardner v PERSSE was heard in the Supreme Court of South Australia, with the appellant appealing a decision made by the Magistrate. The central issue in the appeal was whether the Magistrate had correctly exercised their discretion under section 16 of the Criminal Law (Sentencing) Act 1988 (SA) when deciding not to refrain from recording a conviction against the appellant. The appellant argued that the Magistrate had either considered irrelevant matters or misconstrued the facts of the case, specifically questioning the Magistrate's consideration of the conduct that led to the withdrawal of Count one and the suggestion by counsel that the appellant might re-offend.

The court addressed the appeal by examining the principles governing the Magistrate's discretion and the process of reviewing such decisions. It was established that the Magistrate was entitled to consider the appellant's conduct and the suggestion made by counsel, as these factors were relevant to the sentencing decision. The court found that the Magistrate had not erred in taking these matters into account, nor had the Magistrate misconstrued any of the facts presented. The court emphasised that the Magistrate's discretion was broad and could be exercised based on the overall circumstances of the case, including the appellant's conduct and the likelihood of re-offending.

In conclusion, the appeal was dismissed as the court found no basis to interfere with the Magistrate's exercise of discretion. The court held that the Magistrate was entitled to consider all relevant factors in deciding not to refrain from recording a conviction. The final orders of the court will address any consequential matters arising from the dismissal of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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