Gough v POLICE - [2007] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOUGH v POLICE
[2007] SASC 1
Judgment of The Honourable Justice Anderson
16 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - CONDITIONS
Appeal against conviction - appellant pleaded guilty to five counts of breach of bail conditions - ordered to pay forfeiture amount - convictions recorded for all five breaches - whether the breaches were technical breaches - whether the Magistrate should have imposed a penalty without recording a conviction - whether there were any other extenuating circumstances. Held: appeal allowed - in relation to the first four counts a penalty to be imposed without recording a conviction - in relation to the fifth count the conviction should stand - forfeiture amount of $1000 not varied.
Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.

GOUGH v POLICE
[2007] SASC 1
Magistrates Appeal
ANDERSON J:
Introduction

In this matter the appellant seeks to have his convictions overturned. He pleaded guilty to five counts of breaching conditions of bail and was ordered to pay $1,000, the forfeiture amount nominated in the conditions of bail. He told me that he pleaded guilty on the advice of his solicitor.
Mr Gough was arrested on 27 June 2006 in relation to two counts of indecent assault concerning children under the age of 16 years. They were not his own children. The conditions of bail included a prohibition on him making contact with four named female children, and in addition required him to not be in the company of any child under the age of 16 years, and not to have any child under the age of 16 years at his home address. In respect of the condition that he not be in the company of any child under 16, four of the breaches occurred. The remaining breach was in relation to the condition that he not make contact with one of the named female children. The bail conditions were imposed on the same day that he was arrested, that is, 27 June 2006.
Background
The first four offences to which the appellant pleaded guilty involved his attendances on four occasions at an address in Elizabeth South at a house occupied by his ex-wife and three daughters. One daughter was aged over 16 and the other two were under 16. The appellant was attending his ex-wife’s house to pick up his eldest daughter, which he did by arrangement from time to time. He spoke to his other children at that address when he was picking up his eldest daughter. By an order of the Family Court made on 19 March 2001, the appellant was given “the sole responsibility for the day to day care, welfare and development” of the three children. His wife was given access at various nominated times.
Whether by variation of that order, or by some agreement between the parties, the eldest child had been living with the appellant’s ex-wife since 2003. His second daughter had been living with her mother since 2004, and the youngest daughter, who was 10 at the time, had been living with her mother since the indecent assault charges were laid. This information was provided by way of a written record of the submissions made by Mr Childs, who represented the appellant before the Magistrate.
The fifth offence was committed when the appellant spoke to one of the named female children whom he had agreed in the bail agreement not to make contact with. In relation to this matter, he saw the girl at the local library and merely said “hello”. It was a foolish thing to do because of the condition of his bail but again did not involve any other inappropriate behaviour.
The Magistrate described the circumstances as extremely unusual. I agree with that description. She noted that on 7 July 2006 the appellant made an application to the Court to have his bail condition changed, and that application was refused. It was on that same day that he then went to his wife’s house to pick up his eldest daughter and spoke to his two other children.
The Magistrate noted that although there was contact in the sense of going to the house in which they resided, there was no allegation of any inappropriate behaviour other than the fact that he spoke to them. In relation to the last count, the Magistrate describes it as an accidental communication rather than a deliberate approach.
The appellant’s argument
The appellant was represented before the Magistrate but not on this appeal. He told me that he accepted the advice of his solicitor to plead guilty to all the charges. He now seeks to review that because he believes he should not have been convicted, given the circumstances of the offences. I gather that no submission was made on his behalf that a penalty should have been enforced without recording a conviction. He accepts that he was guilty of the offences but argues that he should not have been convicted because of the unusual circumstances.
It was submitted on behalf of the appellant before the Magistrate that the breaches in relation to the first four counts involving the appellant speaking with his children at the home of their mother were technical breaches in the sense that he was strictly “in the company of” them, but only for a very short time. I agree that they could be described as technical breaches.
After recording the conviction and imposing the penalty, the Magistrate proceeded to vary the bail conditions. The variation Her Honour imposed is as follows:
1.Not to be in the company of any child under the age of 16 years except K and E, and whilst in the company of those children, to be supervised by SB or an adult nominated by her.
2.Not to have any child under the age of 16 years at his home address except K and E, and whilst in the company of those children, to be supervised by SB or an adult nominated by her.
SB is the appellant’s former wife. In my view these varied conditions accord with common sense and are the appropriate conditions to be applied in these circumstances. Unfortunately they were not in place at the time of the offences. They were in my view the only sensible conditions which adequately covered the circumstances of the order made in the Family Court.
There is no question that the offences relating to the breaches of bail conditions were made out. The appellant's legal advisor recognised this and advised him to plead guilty. However, it seems to me that this is an appropriate case in which the Magistrate should have considered imposing a penalty without recording a conviction. It would have been an appropriate submission for counsel, but it was not made. I say that only in respect of the four offences involving the appellant’s children. In relation to the other offence, as I have indicated there is no excuse for what the appellant did, and he must pay the penalty.
Conclusion
Under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) a Court can find a person guilty of an offence and then impose a penalty without recording a conviction. To do that, the Court must first form the opinion that the defendant is unlikely to commit such an offence again; and then, having regard to various nominated criteria, but in particular “any other extenuating circumstances”, proceed to impose a penalty without recording a conviction.
In respect of the offences involving breaching the bail conditions by talking to his own children, I have formed the view that he is highly unlikely to commit such an offence again because of the conditions of bail which have now been varied.
I believe that the circumstances described by the Magistrate as “extremely unusual” are in fact extenuating circumstances.
It is my view that justice would be done in this instance if in relation to the first four counts, a penalty was imposed without recording a conviction and that in relation to the fifth count, the conviction remain.
I would therefore, vary the orders accordingly and quash the convictions on the first four counts. I would leave the amount ordered by the Magistrate, namely the $1,000 forfeiture amount, to be paid by the appellant for the breaches of the bail conditions.