Griffin v Police - [2005] SASC 337

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRIFFIN v POLICE
Judgment of The Honourable Justice White
7 September 2005
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to offence of possession of child pornography - Magistrate entered conviction but upon appellant entering into a bond in the sum of $500 to be of good behaviour for three years released him without penalty - term of bond that appellant come up for sentence if in breach of bond - whether fine rather than bond ought to have been imposed - whether Magistrate erred in recording a conviction - whether length of term of bond was excessive.
Held: no error in Magistrate's exercise of discretion under s 39 of the Criminal Law (Sentencing) Act 1988 to impose bond - recording of a conviction not innapropriate - Magistate erred in requiring entry into a bond for the maximum term of three years - appeal allowed so as to reduce the term of the bond to 18 months.
Summary Offences Act 1953 s 33; Criminal Law Consolidation Act 1935 s 63A; Criminal Law (Sentencing) Act 1988 s 16, s 39, s 40; Classification (Publications, Films and Computer Games) Act 1995 s 7, referred to.
Coyle v Police [2001] SASC 43; (2001) 212 LSJS 369; Flett v SA Police (SC (SA), King AJ, 5 August 1997, Jdgt No S6291), applied.

GRIFFIN v POLICE
[2005] SASC 337
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed by a Magistrate for the offence of possession of child pornography.[1] The appellant pleaded guilty to the charge. The Magistrate entered a conviction but released the appellant without penalty upon him entering into a bond in the sum of $500 to be of good behaviour for a period of three years. It was a term of the bond that the appellant comply with all the conditions of the bond, one of which was that he was to “come up for sentence if called upon”.
[1]Summary Offences Act 1953, s 33(3) This subsection has now been repealed. Section 63A of the Criminal Law Consolidation Act 1935 creates a corresponding offence.
The maximum penalty for the offence of possession of child pornography which was applicable at the time of the commission of the offence by the appellant was imprisonment for one year or a fine of $5000.
On the appeal, the appellant makes four complaints. First, he submits that he should have been fined rather than subjected to a bond. Secondly, he submits that the Magistrate should not have recorded a conviction. In the alternative, if a bond was appropriate, he submits that the term fixed by the Magistrate of three years was excessive and further, that the Magistrate…

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 Griffin v Police

Details

AGLC: Griffin v Police [2005] SASC 337
Case: [2005] SASC 337
Decision Date: 7 September 2005

CaseChat Overview and Summary

Griffin v Police involved an appeal against the sentence imposed by a Magistrate on the appellant, who had pleaded guilty to possessing child pornography. The Magistrate, while entering a conviction, discharged the appellant on a bond of $500 to be of good behaviour for three years without imposing any penalty. The appellant argued that the Magistrate should have imposed a fine instead of the bond and that the length of the bond was excessive. The appeal centred on whether the Magistrate had erred in exercising her discretion under section 39 of the Criminal Law (Sentencing) Act 1988. The appellant contended that the Magistrate did not adequately consider his financial situation when deciding against a fine and that the three-year bond was inappropriate. The Supreme Court of South Australia needed to determine if the Magistrate's decision to use a bond instead of a fine and the duration of the bond were justified.

The court found that the Magistrate had exercised her discretion correctly in discharging the appellant on a bond instead of imposing a fine. While the appellant argued that a fine would have provided more finality, the court recognised that the Magistrate likely considered the appellant's financial situation, given that he was on a disability support pension. The court held that the Magistrate did not err in this regard and that recording a conviction was appropriate given the seriousness of the offence. However, the court did find that the three-year bond was excessive. The appeal was allowed to reduce the bond term to 18 months, balancing the need for deterrence and rehabilitation with the appellant's financial circumstances. The court's decision underscored the importance of proportionality in sentencing and the appropriate exercise of judicial discretion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There had been a previous court appearance on 5 March 1979 for other offences but given the long period of time which had elapsed since then, it was not suggested that they were particularly relevant to the sentencing decision in this case.The Decision of the Magistrate Having referred to the circumstances outlined above the Magistrate said:I make it plain the courts take a very dim view of this type of material. The view is that if it were not for people who access it then the children involved would not be subjected to the acts which they were and therefore only by deterring people from possessing the type of material that you had, that abuse similar to this can be stopped. Although the Magistrate did not expressly say so, it is apparent that she exercised the discretion vested in her by s 39 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). Section 39 provides as follows:(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—(a) to be of good behaviour; and(ab) to comply with the other conditions (if any) included in the bond; and(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).(2) Where a defendant is discharged under this section—(a) no fresh prosecution may be commenced in respect of the offence; and(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event. The Magistrate must have accepted that there was good reason to sentence the appellant by recording a conviction and then, without imposing any penalty, discharging him upon the condition that he enter into a bond in the specified terms.Discharge on a Bond Instead of a Fine The appellant’s first submission was that a fine should have been imposed rather than the Magistrate making an order discharging him on a bond pursuant to s 39. This is a somewhat surprising submission as, ordinarily, a decision to discharge an offender on a bond without imposing a penalty would be regarded as a beneficial exercise of the sentencing discretion. It was submitted, however, that in this case the appellant valued greatly the finality which payment of a fine entailed in comparison with the ongoing obligations of a bond, especially a bond which required the appellant “to come up for sentence if called upon”. The Magistrate was informed that the appellant subsisted on a disability support pension. That submission conveyed implicitly to the Magistrate that the appellant was a person of limited financial means for whom a fine may constitute a particular hardship. It is reasonable to suppose that the Magistrate’s decision not to impose a fine was influenced by that submission. It was submitted that the Magistrate erred in not enquiring, before refraining from sentencing the appellant by way of a fine, as to his ability to pay a fine. A limited income does not necessarily mean, it was submitted, that a person does not have the financial resources by which to pay a fine.

Ratio Decidendi

Legal Principle Established

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