Jones v Police

Case [2009] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

JONES v POLICE

[2009] SASC 137

Judgment of The Honourable Justice Gray

22 May 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

PROCEDURE - COSTS - APPEALS AS TO COSTS - WRONG EXERCISE OF DISCRETION

Appeal against recording of conviction and adequacy of costs order - defendant and appellant convicted of charge of disorderly behaviour following plea of guilty - defendant appealed on basis of denial of procedural fairness - defendant submitted that Magistrate failed to consider to proceed without recording conviction pursuant to powers under section 16 of Criminal Law (Sentencing) Act 1988 (SA) - Magistrate did not provide sentencing remarks - reconsideration of matter - whether discretion under section 16 enlivened - whether appropriate to exercise discretion to proceed without recording conviction - two other counts withdrawn - costs order of $600 awarded in favour of defendant - whether costs order adequate in circumstances.

Held: appeal allowed - defendant denied procedural fairness - orders made by Magistrate set aside - defendant convicted of offence of disorderly behaviour as charged - no further penalty imposed - no order made as to costs of summary proceedings - no order made as to costs of appeal.

Road Traffic Act 1961 (SA) s 47B(1)(a); Motor Vehicles Act 1959 (SA) s 81AB(5); Criminal Law (Sentencing) Act 1988 (SA) s 9 and s 16; Summary Procedure Act 1921 (SA) s 189(1); Magistrates Court Rules 1992 (SA) r 51, referred to.
Forgione v Police [2008] SASC 54; Cross v Police [2001] SASC 47; Papps v Police (2000) 77 SASR 210; Leslie v Police [2001] SASC 270; Hodgson v Police [2002] SASC 35; Germain v Police [2006] SASC 340; O’Donoghue v Police [2007] SASC 169; Zefi v Police [2003] SASC 218; SA Police v Leonard (1995) 64 SASR 390; Konieczka v Police (2006) 245 LSJS 458; Curnow v Police (2008) 100 SASR 290; Ling v Police (1996) 90 A Crim R 376; Haslam v Emu Air Charter Pty Ltd (1988) 200 LSJS 454; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; K-Generation Pty Ltd v Liquor Licensing Court (2009) 252 ALR 471; R v Becker (2005) 91 SASR 498; Corak v Police [2006] SASC 172; Frank v Police (2007) 98 SASR 47; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

JONES v POLICE
[2009] SASC 137

Magistrates Appeal

GRAY J.

  1. This is an appeal against the recording of conviction and the adequacy of a costs order.

    Background Facts

  2. On 3 February 2009, the defendant and appellant, Adrian Ronald Jones, following a plea of guilty, was convicted of the offence of disorderly behaviour in the Port Augusta Magistrates Court.  A fine of $200.00 was imposed. 

  3. At the same time, two other charges were withdrawn. Those charges alleged that the defendant had…

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AGLC
Jones v Police [2009] SASC 137
Case
[2009] SASC 137
Decision Date

CaseChat Overview and Summary

The appellant, Adrian Ronald Jones, was convicted in the Port Augusta Magistrates Court of disorderly behaviour and fined $200. The Magistrate also made a costs order in favour of the defendant in the amount of $600 with respect to two other withdrawn charges. The appeal against the conviction and costs order was heard in the South Australian District Court. The legal issues before the court were whether the defendant was denied procedural fairness, whether the discretion under section 16 of the Criminal Law (Sentencing) Act 1988 (SA) was enlivened, and whether the costs order was adequate in the circumstances.

The court held that the defendant was denied procedural fairness as the Magistrate did not provide sentencing remarks. The court also held that the discretion under section 16 was not enlivened as the Magistrate did not consider imposing a fine or community service, nor did the court form an opinion that the defendant was unlikely to commit such an offence again. The court found that the costs order was not adequate in the circumstances as the defendant had already suffered several indirect punishments. The appeal was allowed, the orders made by the Magistrate were set aside, and the defendant was convicted of the offence of disorderly behaviour as charged with no further penalty imposed. No order was made as to the costs of the summary proceedings or the costs of the appeal.

This decision highlights the importance of providing reasons for a sentence and the need for a court to consider all relevant matters when exercising discretion under section 16 of the Sentencing Act. The absence of reasons and the failure to consider the discretion not to record a conviction resulted in the defendant being denied procedural fairness.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against the recording of conviction and the adequacy of a costs order.Background Facts On 3 February 2009, the defendant and appellant, Adrian Ronald Jones, following a plea of guilty, was convicted of the offence of disorderly behaviour in the Port Augusta Magistrates Court. A fine of $200.00 was imposed. At the same time, two other charges were withdrawn. Those charges alleged that the defendant had driven a motor vehicle while having a prescribed concentration of alcohol in his blood contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA), and breaching a condition of his probationary licence contrary to section 81AB(5) of the Motor Vehicles Act 1959 (SA). The Magistrate made a costs order in favour of the defendant in the amount of $600.00 with respect to the withdrawn charges. On 14 December 2008 at 4.15 am in Whyalla, Police were requested to attend the house of Jodie Meyer, the defendant’s ex-girlfriend, to check on the defendant’s welfare. He was in a vehicle in the street, outside her house. Ms Meyer provided a statement to the police in which she alleged that on 14 December 2008 at about 4.15 am she was at her home at 18 Menard Street, Whyalla Stuart when she heard a vehicle pull up outside. She looked out and saw a white Toyota Land Cruiser which she recognised as the vehicle of her former partner, the defendant. The area was illuminated by a streetlight and she could see a person sitting in the driver’s seat. There was nobody in the passenger seat. Ms Meyer said that the defendant had attended at her home earlier in the evening in an intoxicated state and she was concerned about his welfare and called the police to check on him. At or about 4.40 am Constable May who was on solo uniform mobile patrol in a marked police vehicle, attended at Menard Street and located the defendant asleep in the driver’s seat of the white Toyota Land Cruiser. She observed the key to be in the ignition and felt the bonnet of the vehicle to be warm. Constable May spoke to the defendant, detected a strong smell of liquor about him and questioned him as to how he had “gotten there”. The defendant responded that he had driven. Constable May then requested the defendant to “exit the vehicle and stand on the footpath”. Whilst Constable May was speaking to the defendant, he began pacing about on the road, punching his fist in the air, pointing his finger at Constable May and shouting offensive language including the words “fuck” and “fucking bitch”. Constable May was concerned about the defendant’s demeanour and requested police assistance. Constables Brian and Sheppard attended about 10 minutes later. The defendant at that time submitted to an alcohol test. The test was positive. He was then conveyed to the police station and undertook a breath analysis test. The result was a reading of 0.158. When interviewed shortly after 6.00 am the defendant stated that he had been to a work function and had consumed about four beers. He claimed to have no recollection of driving to Menard Street and was unable to explain how he came to be there. He said that he could not remember acting in a disorderly manner but wished to apologise if he had been aggressive. He said that any such conduct was out of character for him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
The rationale for this suggestion was that the defendant had suffered several indirect punishments. The defendant suffered the loss of his licence as a result of the immediate disqualification for a period from 14 December 2008 to 3 February 2009, with some consequential loss of income. The defendant incurred legal expense with respect to the application to the lifting of the immediate licence disqualification, the proposed trial and this appeal. The defendant had been denied procedural fairness in the course of the hearing before the Magistrate, and had been denied reasons for penalty. His counsel informed the Court that he had been upset by his treatment by the Magistrate. He had a legitimate grievance with the manner in which the matter was addressed by the Magistrate. Both counsel accepted that in the event that I determined to dismiss the appeal against the recording of the conviction, the above suggestion was an appropriate and just conclusion. Conclusion This appeal is allowed. The orders made by the Magistrate are set aside. The defendant is convicted of the offence of disorderly behaviour as charged. No further penalty is imposed. No order is made with respect of the costs of the summary proceedings. No order is made with respect to the costs of this appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

As noted, the purpose of reasons is twofold. The provision of reasons provides the defendant with an explanation for the sentence, furthering the objects of general and personal deterrence. It does not follow that there was any error in the determination of the sentence. The other purpose of reasons is to allow an appellate court to discharge its duties and in a consideration of an appeal, if appropriate, give due weight to the views expressed by the Magistrate. The absence of reasons frustrates this process and impedes the ability of the appeal court to deliver a just result. Again, it should be observed that it does not follow that there was any error in the determination of the sentence. Reconsideration of the matter Having regard to the earlier referred to denial of procedural fairness, in this case compounded by the absence of reasons, the Crown conceded that this Court should reconsider the sentencing of the defendant for the offence of disorderly behaviour. The Crown was correct to make this concession. Section 16 of the Sentencing Act provides: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. This Court has previously held that there are a number of preconditions to the enlivening of the discretion not to record a conviction pursuant to section 16. The Court must propose to impose a fine, a sentence of community service, or both and the Court must then form the opinion pursuant to section 16(a) that the defendant is unlikely to commit such an offence again. The Court must then reach the conclusion that good reason exists for not recording a conviction, having regard to the factors referred to in section 16(b). When these preconditions are satisfied, the discretion to proceed without recording a conviction is enlivened. Once satisfied that section 16(a) and (b) have been satisfied, the Court must still consider whether it is appropriate to exercise the discretion.[41] [41] Zefi v Police [2003] SASC 218 at [10]. In reconsidering the appropriate course to be taken with respect to the charge of disorderly behaviour, the Court is entitled to have regard to all relevant matters existing at the time of reconsideration. Counsel submitted that an offence of disorderly behaviour was not the type of offence that necessarily lent itself to the recording of a conviction. It was said that the offending in this case was not serious, and for example, was not a domestic violence offence, and consequently the seriousness of the offence itself was not a reason for recording a conviction.