Godfrey v South Australian Police No. Sccrm-03-867

[2003] SASC 294

GODFREY v POLICE
[2003] SASC 294

Magistrates Appeal

1. Doyle CJ               The appellant appeals against the penalty imposed on him in the Magistrates Court following his plea of guilty to a charge of unlawful possession. Particulars of the offence were that on 5 March 2003, he had in his possession 60 packets of insulation which were reasonably suspected of having been stolen or obtained by unlawful means, contrary to s41(1) of the Summary Offences Act 1953 (SA).

2. The magistrate before whom he appeared recorded a conviction and imposed a fine of $1000.

3. The magistrate was invited not to record a conviction, but declined to follow that course. The appeal challenges the recording of the conviction only.

4. It appears that the packets or bags of insulation were accumulated by the appellant over a period of three or four months. They were surplus from various job sites at which the appellant was engaged as a contractor to install the insulation. I am told that what happened was that usually about one bag or packet in excess of the estimated requirement was provided, in case the estimate turned out to be low. The appellant, instead of returning these to the firm to which he was contracted, or informing that firm that there was a bag or two left over, took surplus bags to his home and kept them there.

5. The fact that there were about 60 bags of insulation indicates that the appellant did this on a number of occasions. There is no way of telling how many separate occasions there were, but clearly there was a substantial number of separate occasions, perhaps getting towards as many as 60. The value of the insulation was quite substantial, namely, $2800.

6. The appellant was in a position of trust in relation to the firm with which he was contracting. I am not satisfied on the basis of what Mr Devolle put to me that there were major difficulties confronting the appellant in relation to informing the contractor that there was insulation left over, or in relation to returning it to the contractor. I accept that after some period of time the appellant might have felt trapped in the situation, but if that is so, he was trapped only because he had already kept a sufficiently large number of bags of insulation for the contracting party to be suspicious if he then informed the contracting party that he had done so.

7. I add that most or all of the material was apparently recovered, and I gather that much of it was able to be reused.

8. The appellant had no prior convictions and was in steady employment.

9. The magistrate accepted a submission that the appellant did intend to return the insulation, but did not get around to doing so. That makes the offence less serious, but it does not follow that the appellant was to be sentenced on the basis that the insulation would actually have been returned. The fact is the appellant, as the magistrate accepted, did intend to return it, but he might nevertheless never have got around to doing so.

10. The magistrate noted that the appellant was in steady employment and intended to resume university studies.

11. The magistrate said that the period of time over which the offending occurred, and the number of separate occasions on which bags were kept, militated against a decision to exercise the power under s16 of the Criminal Law (Sentencing) Act 1988 (SA) and refrain from recording a conviction.

12. I mention that, on appeal, the solicitor for the appellant has not provided an affidavit deposing to the mitigating facts on which the appellant relied before the magistrate. To some extent, they are to be found in the magistrate’s reasons, but, as is common, further facts came out. As I pointed out at the time, it is important that appellants provide an affidavit as to the facts that are relied upon before magistrates, because these are not always recorded, and if they are going to go beyond circumstances recorded in the magistrate’s reasons, these matters should be proved by an affidavit. Nevertheless, because the circumstances are relatively straightforward, I was prepared to act on the basis of submissions from the bar table.

13. It was argued on appeal that the appellant is of good character and has good prospects of leading a law-abiding life. I am prepared to accept that and, as I indicated, that he is unlikely to offend again. The particular point was made that he wishes to resume studies at a university for a degree in international business studies and is concerned about the effect of a conviction on his prospects of employment. I can understand that as well.

14. The point was made that this was an immature act, that there was an impulsive element to it, and that the appellant was not old enough for one to say that he has to learn from his mistakes. On the other hand, as I have already said, it would appear from the facts that there must have been numerous occasions over a number of weeks on which the appellant kept bales of insulation that should have been returned to the employer.

15. The appellant was represented before the magistrate. The matters put to me and the matters referred to in the magistrate’s reasons were all put to the magistrate. There is no reason to think that the magistrate failed to consider them, even though he did not refer to all of them. There is no obligation on a magistrate in reasons to refer to all matters put to him. There is no reason to think that the magistrate misdirected himself as to the application of s16 of the Sentencing Act. In particular, the fact that the appellant is unlikely to offend again does not, of itself, entitle him to a decision not to record a conviction. That is no more than an initial or qualifying fact which must be established before the discretion arises.

16. I am unable to say that the magistrate erred. This was a borderline case, in my opinion, but the magistrate has given brief reasons indicating the matters that he considered. I am unable to say that in the circumstances there is any sign of error in his reasons. Nor can I say, because I regard it as a borderline case, that the outcome is indicative of error, in the sense that if he had properly considered the situation, the magistrate must properly have decided not to record a conviction. Because I am unable to say that the magistrate erred, the appeal must be dismissed and, accordingly, I order that the appeal be dismissed.

    The orders of the court are:

    1.     That the appeal be dismissed.

    2.     That the appellant pay the respondent’s costs fixed at $150.00.