Jones v Police - [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16 enlivened - whether appropriate to exercise discretion to proceed without recording conviction - two other counts withdrawn - costs order of $600 awarded in favour of defendant - whether costs order adequate in circumstances.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.

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.
The defendant on being taken into custody had his licence instantly disqualified. He was subsequently charged with the offences referred to earlier.
On 6 January 2009 the defendant made an application to lift the licence disqualification. On this occasion, the only ground advanced was that he needed his driver’s licence for his employment. The court concluded that this was not a ground for lifting his suspension and the suspension remained in force. At this time, the defendant was unrepresented.
On 20 January 2009, a further application to lift the licence disqualification was advanced. On this occasion the defendant was represented. The defendant alleged that he had not been driving, and any evidence of Ms Meyer that he had been driving was unreliable. The Magistrate declined to lift the suspension. The application was listed for hearing with the three Summary charges on 3 February 2009. The Magistrate endorsed the Summary proceeding file with the note that only one witness was to be called.
On 29 January 2009, the police were notified that Ms Meyer would not provide a statement and a decision was taken not to proceed with the drink driving and breach of probationary licence charges. The defendant’s advisors were notified of the withdrawal of those counts either that day or the next day.
It appears that there was to be no challenge to Constable May’s evidence or the other police evidence. However to establish the drink driving offence and the breach of probationary licence offence, it was necessary for the prosecution to prove that the defendant had been driving in the two hour period prior to the breath analysis. Presumably, the prosecution intended to rely on the statutory presumptions with respect to the relation back period.
The trial did not proceed on 3 February 2009. There was a plea to the charge of disorderly behaviour. The other counts were dismissed. The Magistrate convicted the defendant and imposed a fine of $200.00. The Magistrate also made a $600.00 costs award in favour of the defendant. No reasons were provided for either decision.
The Appeal
Procedural Fairness
The primary submission of the defendant was that there had been a denial of procedural fairness. It was complained that the Magistrate interrupted defence counsel’s submissions as counsel was submitting that the Magistrate should exercise her powers pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA) and proceed without recording a conviction. Defence counsel in an affidavit tendered on the hearing of the appeal deposed:
I addressed the Court first. I explained that this matter had been the driving licence re-hearing application the learned Magistrate had heard in Whyalla and then listed for trial for the “critical” witnesses to attend. I said that the trial had resolved and that prosecution were going to withdraw everything but the disorderly behaviour charge which was to resolve by way of guilty plea.
At this point and without hearing further from me or at all from the prosecutor, the learned Magistrate asked if there was any reason why [the defendant] should not receive a $200 fine. I said “Yes Your Honour” and then proceeded to ask that the matter be dealt with without conviction. I asked Her Honour to exercise her discretion pursuant to s 16. I submitted that Mr Jones had no relevant priors – and was in effect a first offender for anything other than traffic matters. I said the only past matters on his record were two minor traffic charges which were dated and that he had been convicted for those regulatory matters. Before I had completed my submissions about s 16 the learned Magistrate said “well now he has a conviction for disorderly behaviour too [counsel].” I started to indicate that there was little likelihood that this type of offence would be repeated and had intended to take the Magistrate to the specifics of s 16 and to remind her of the facts but I did not have any further opportunity to speak as the learned Magistrate repeated her order – that a conviction was to be imposed.
Nothing more was put on [the defendant’s] behalf about s 16 and its applicability and nothing was put at all by way of personal circumstances or his employment situation (this was despite me having over a page of material from which to make my submissions).
An affidavit of the police prosecutor was also tendered on the appeal. The prosecutor had no recollection of the matters referred to by defence counsel. With respect to the allegations concerning the charge of disorderly behaviour, the prosecutor stated:
I did not read allegations from the apprehension report in relation to this charge. I relied on the allegations contained in the complaint to inform the Court of the facts of the matter. In fact I made no submissions about penalty.
The allegation in the complaint was simply that on the occasion in question the defendant “behaved in a disorderly manner in a public place”.
The Crown Solicitor, appearing for the police on the hearing of the appeal, accepted the account of the events attested to by defence counsel. It was acknowledged that the Magistrate should not have indicated so definite a view in the course of submissions as to penalty. However, it was submitted that the duty of counsel was to insist on being permitted to complete her submissions.
It should be said immediately that Magistrates conducting lengthy lists, day in day out, particularly in country courts, face a burdensome task. It is a task that calls for patience, if not extraordinary patience. What might appear to be relatively minor matters in a busy court list may be of great importance to the parties in court. At times, Magistrates may feel a desire to cut through and move the list along. However, the dispensing of justice in a measured way should prevail.
In the present proceeding, the defendant had retained counsel and was entitled to have the Court hear and consider the submissions to be put on his behalf. Counsel wished to advance a submission that no conviction be recorded. This no doubt was considered to be an important matter by the defendant. It called for a consideration of the power to make such an order, and consideration of the facts and circumstances submitted by counsel to justify an exercise of the discretion in favour of the defendant. To interrupt counsel by saying to counsel “well now he has a conviction for disorderly behaviour too” was inappropriate for a number of reasons. It would convey the impression to the reasonable observer, that the Magistrate had pre-judged the matter before submissions had been completed. It placed counsel in an invidious position in that insisting on continuing submissions could give rise to a risk of irritating the Magistrate and potentially lead to the imposition of a greater penalty than might otherwise be imposed. When counsel attempted to continue her submissions, the Magistrate again interrupted counsel and repeated that a conviction was to be imposed. A serious denial of procedural fairness occurred.[1] This was not a case where the Magistrate expressed a tentative view. It was a case of the Magistrate having a closed mind.
[1] Forgione v Police [2008] SASC 54.
Reasons
It was further complained that the Magistrate failed to provide any sentencing remarks. On 3 April 2009 at 2.17 pm, the Crown received an email from the Magistrate’s clerk advising that:
In this matter there are no reasons as to penalty on Count 1, the disorderly behaviour matter. On that day Counts 2 and 3 were dismissed with a $600 costs order made against the prosecution. There are no reasons to transcribe.
Section 9 of the Criminal Law (Sentencing) Act imposes an obligation on the courts to provide reasons for sentencing. That section provides:
Court to inform defendant of reasons etc for sentence
(1)     A court must, upon sentencing a defendant who is present in court—
(a)    state its reasons for imposing the sentence; and
(b)cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2)     The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
Due to the differing authorities on the operation of section 9 it is convenient to analyse the construction of the section before proceeding.
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[2]
[2] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J). A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
This principle was addressed by Kirby J In Palgo Holdings Pty Ltd v Gowans:[3]
... a purposive and not a literal approach[4] is the method of statutory construction that now prevails:[5]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[6] As Lord Diplock explained, in an extra-judicial comment,[7] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[8]
[3]    Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[4]    Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[5]    Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[6]    Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[7]    Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[8]    Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263 at 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
In Palgo Holdings v Gowans, the importance of context as an aid to statutory construction was also noted by Kirby J:[9]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[10] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[11]
[9] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[10] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[11] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
All words in a statute must prima facie be given some meaning and effect. In Project Blue Sky v Australian Broadcasting Authority,[12] McHugh, Gummow, Kirby and Hayne JJ observed:[13]
[A] court construing a statutory provision must strive to give meaning to every word of the provision.[14] In The Commonwealth v Baume[15] Griffith CJ cited R v Berchet[16] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[12] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.
[13] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[14] The Commonwealth v Baume (1905) 2 CLR 405 at 414 (Griffith CJ) at 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13 (Mason CJ).
[15] Commonwealth v Baume (1905) 2 CLR 405 at 414.
[16] R v Berchet (1688) 1 Show KB 106 [89 ER 480].
The use of extrinsic materials was discussed by French CJ in K-Generation v Liquor Licensing Commission:[17]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[18] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[19]
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.[20]
In accordance with these observations it is instructive to consider the Parliamentary intent which informed the enactment of section 9.
[17] K-Generation Pty Ltd v Liquor Licensing Court (2009) 252 ALR 471 at [51] - [53].
[18] Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J), 111 (Wilson J); Hoare v R (1989) 167 CLR 348 at 360–1.
[19] Owen v South Australia (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.
[20] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

The second reading speech acknowledges the theoretical background of a number of the reforms in the legislation and acknowledges the recommendations of the Australian Law Reform Commission in relation to sentencing. The speech states that “many of the reformative measures in this Bill are directed specifically towards redressing such injustices and imbalances … this type of provision is designed to ensure that the sentencing Court’s discretion is in all cases clearly directed and articulated”.[21]
[21] South Australia, Parliamentary Debates, House of Assembly, 29 March 1988, 3661 (G J Crafter, Minister of Education).
A short explanation behind clause 9 was outlined by the Attorney-General as follows:
Clause 9 requires a court to give its reasons for imposing a particular sentence if the defendant is present in court, and must also explain the effect of the sentence.
This suggests that the requirement to give reasons was intended to be mandatory. The obligation upon the courts is expressed in mandatory terms. Such a construction is supported by authority establishing that a failure to give reasons for sentence may amount to an error justifying the setting aside of that sentence.[22] This construction appears to conflict with the provisions of section 9(2) that direct that the validity of a sentence is not affected by non-compliance or insufficient compliance with the section.
[22] R v Becker (2005) 91 SASR 498; Cross v Police [2001] SASC 47 at [32]; Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police (2007) 98 SASR 47; Leslie v Police [2001] SASC 270.
Reasons are clearly required[23] where a substantial custodial sentence is in contemplation,[24] particularly if the defendant is unrepresented,[25] or if there is a factual dispute that requires resolution.[26] However, “it has not been authoritatively decided [whether] a court of summary jurisdiction necessarily errs in law by failing to give reasons for sentence on a plea of guilty”,[27] where no custodial sentence is to be imposed and where there is no factual dispute to be resolved. In some cases, there will be “no real need” for reasons because “it would be fairly obvious why the Magistrate would not have exercised the discretion or, alternatively, it would be a case where the giving of reasons would be unlikely to add much”.[28]
[23] Papps v Police (2000) 77 SASR 210 (Gray J, Olsson and Wicks JJ agreeing).
[24] Cross v Police [2001] SASC 47.
[25] Leslie v Police [2001] SASC 270.
[26] Papps v Police (2000) 77 SASR 210, 219.
[27] Hodgson v Police [2002] SASC 35 at [3] (Doyle CJ).
[28] Hodgson v Police [2002] SASC 35 at [31]-[32] (Doyle CJ).
In the present proceedings, the Magistrate was obliged to comply with section 9. She failed to do so. Although this failure to comply with the statutory obligation is an error in the sentencing process, section 9(2) stipulates that this failure does not give rise to “automatic invalidity”.[29] The question arises as to the consequences that follow.
[29] Cross v Police [2001] SASC 47 at [32] (Olsson J).
The function of sentencing remarks was considered by the Full Court in Becker:[30]
There is a tendency on the part of some counsel who appear regularly in appeals against sentence in Justices Appeals and in the Court of Criminal Appeal, by imperceptible adjustment of their submissions, to reach a stage where they invite the Court to treat remarks on sentencing as if they were reasons for judgment. They are, of course, nothing of the kind. A judgment, stricto sensu, is a compact piece of reasoning directed to the resolution of defined issues both factual and legal. Remarks on sentencing are primarily spoken to and for the benefit of the prisoner, and only secondarily to and for the benefit of the world at large. They follow the exercise by the court of a wide judicial discretion by means of which numerous factors are to be brought into a delicate balance, but the results of that exercise are not, except in the rarest of cases, susceptible to being presented as the inexorable outcome of a process of inductive or deductive reasoning. They appear at their most helpful and illuminating when they make plain to the prisoner the disrupting effect of his or her offence upon the community, or some segment of the community; explain to him or her the necessity for the sentence imposed or the order made, and where appropriate, how a particular order will operate for his betterment; and offer to him or her some sensible, practical advice, some serious, pertinent, admonition, or some encouragement, for the future. It would be wrong to force such remarks into an artificial mould whose shape and volume is dictated by the demands of a judicial process fundamentally different from that of sentencing.
[30] R v Becker (2005) 91 SASR 498 at [19] (Gray, Sulan and Layton JJ) citing Shrubsole v Rodriguez (1978) 18 SASR 233 at 235 (Wells J).
The apparent conflict between section 9(2) and the obligations imposed by section 9(1) has been the subject of discussion in a number of authorities. The meaning of section 9(2) was questioned by Doyle CJ in Hodgson v Police:[31]
Does that mean that the sentence is valid but wrong in law and liable to be set aside? Or, does it mean that the sentence is valid and not liable to be set aside unless the absence of reasons is such that a court on appeal cannot properly discharge its functions, or unless the court takes the view that having regard to the sentence imposed, it was necessary for the court to give reasons?
The Chief Justice did not consider it necessary to resolve these issues for the purpose of the matter then before the Court.
[31] Hodgson v Police [2002] SASC 35 at [7].
In Cross v Police,[32] Olsson J highlighted that section 9(1) does not negate the clear obligation of a judicial officer to provide reasons for sentence:
… s9(2) of the Criminal Law (Sentencing) Act 1988 cannot fairly be read as negating, for appellate purposes, the clear obligation of a judicial officer to give proper reasons for sentence both at common law and as contemplated by s9(1) of that Act. It simply stipulates that a failure to state reasons does not give rise to automatic invalidity. The classic illustration is … the imposition of a routine penalty for a routine offence.
Olsson J expressed concern regarding the number of cases that had come on appeal in circumstances where little or no reasons had been given by way of sentencing remarks:[33]
Bearing in mind the heavy – if not somewhat unrealistic workloads apparently experienced by magistrates on general list days – it is not to be expected that fully developed and comprehensive sentencing remarks will be given in what might fairly be described as routine cases attracting fairly routine penalties.
However, even in such cases, defendants are entitled to have their matters adequately considered. It would be most unfortunate if, due simply to work overload, an impression was gained that matters were being disposed of at high speed and without in-depth consideration, simply to enable a long list to be disposed of.
…
This is so that the parties and any appellate court are able to discern what factors have been taken into account and in what manner, what has led to the sentence actually imposed.
The remarks of Olsson J in Cross v Police were adopted by Nyland J in Leslie v Police.[34]
[32] Cross v Police [2001] SASC 47 at [32].
[33] Cross v Police [2001] SASC 47 at [28]-[30].
[34] Leslie v Police [2001] SASC 270 at [18].
In Corak v Police,[35] Vanstone J considered section 9(2) in the context of the scarcity of reasons provided by the Magistrate, before concluding:[36]
The extent to which a magistrate must justify the disposition of a matter is a topic upon which fair minds may differ. (See, for example, Szewczuk v Police [2001] SASC 223 per Lander J; Hodgson v Police [2002] SASC 35 per Doyle CJ; Peters v Police [2004] SASC 284 per Nyland J.) But the provision of reasons is important from the viewpoints of the offender, the victim and the community at large and, further, helps to enable the appellate court to perform its role of reviewing the sentence.
…
In the circumstances I find that the Magistrate fell into error and that the sentence, although valid according to s9(2) Criminal Law (Sentencing) Act, is wrong in law.
In Frank v Police,[37] Sulan J considered the words of section 9(2) and concluded that:
It follows that the failure to give adequate reasons does not, of itself, invalidate the sentence.
Nevertheless, it is incumbent on a sentencing court to state its reasons for imposing a sentence. A failure to do so is an error.
[35] Corak v Police [2006] SASC 172.
[36] Corak v Police [2006] SASC 172 at [10] and [12].
[37] Frank v Police (2007) 98 SASR 47 at [56]-[57]. See also Germain v Police [2006] SASC 340 at [39].
Common to the approach of the above authorities has been a distinction between the concepts of validity and error. Whilst a failure to comply with section 9(1) will not prevent the sentence delivered from standing as a valid and enforceable order of the Court, this does not preclude a separate challenge alleging that the otherwise valid order was reached by a faulty means such as an error of law or fact, and that it should be set aside.
This approach appears to recognise the different purposes for which reasons are delivered. Earlier decisions have considered that the primary purpose of giving reasons on sentence is for the benefit of the defendant.[38] Later decisions have recognized the additional role of reasons in assisting an appellate court to perform its role of reviewing the sentence.[39] The wording of section 9(1), particularly subsection (b), suggests that both section 9(1) and section 9(2) are concerned primarily with the former rather than latter purpose. In this context, the failure to comply with section 9(1) might be regarded as one of a number of procedural matters not affecting validity of the order of the Court, without precluding subsequent challenge in the event of an error of law or fact.
[38] Shrubsole v Rodriguez (1978) 18 SASR 233 at 235 (Wells J); Leslie v Police [2001] SASC 270 at [18].
[39] Corak v Police [2006] SASC 172 at [10]; O’Donoghue v Police [2007] SASC 169 at [11]-[13].
The provisions of section 9 do not prevent a Court from setting aside a decision where a failure to provide adequate reasons frustrates the discharge of the appellate function by a court of review, or where such failure results in justice being not seen to be done. Section 9(2) saves such a sentence from being regarded as “invalid” in the sense that the sentence will remain a valid order of the Court. However, section 9(2) will not save such an order from being set aside in the event that it was arrived at in error.
A failure to comply with section 9 leaves the appeal court in a difficult position. It has to review the sentence without the assistance of any sentencing remarks or without any other understanding of why the Magistrate in the present case imposed the particular sentence. More specifically, the Court is unaware of whether the Magistrate gave any consideration at all to proceeding without recording a conviction or, if she did consider that matter, why she declined to exercise her discretion.
The Crown conceded that the Magistrate was obliged to deliver reasons for penalty.[40] Counsel accepted that section 9(1) by the use of the word “must”, cast a mandatory obligation. In that respect, however, it was pointed out that the provision of reasons does not play a part in the determination of an appropriate sentence. It is an event that follows the determination of sentence.
[40] Germain v Police [2006] SASC 340; O’Donoghue v Police [2007] SASC 169.
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.
Counsel submitted that a number of factors provided reason for this Court to exercise its powers under section 16, to impose a fine but not to record a conviction. It was said that the Court should form the opinion that the defendant was unlikely to commit such an offence again. It was suggested that the defendant was generally of good character and that he had learnt his lesson. Counsel highlighted that he had apologised to the police when taken into custody. It was also said that this incident arose following a domestic altercation and that such a circumstance could be avoided in the future.
The defendant appears to have been involved in a level of domestic turmoil for some years, in several relationships. There is no evidence before the Court that ongoing domestic disputes will not occur. The defendant appears to have a problem with alcohol, evidenced by his 2005 drink-driving offence. Intoxication was said to play a part in the present offence. There is nothing about his character, antecedents, age or physical or mental condition that in my view provides good reason not to record a conviction. I am not of the opinion that the defendant is unlikely to commit such an offence again.
Counsel for the defendant next submitted that the offence was trifling. The relevant legal principles to be considered were reviewed in Siviour-Ashman v Police[42] when Doyle CJ observed:[43]
As Parliament has conferred the relevant power in relation to all three categories of offence under s 47B, one cannot say that simply because the offence is a category 2 offence it cannot be trifling. In Walden v Hensler (1987) 163 CLR 561 Brennan J said at 577:
“Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty.”
Dawson J expressed a similar view at 595.
I agree with the Judge that one should begin by bearing in mind the ordinary meaning of “trifling”. That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.
[42] Siviour-Ashman v Police (2003) 85 SASR 23.
[43] Siviour-Ashman v Police (2003) 85 SASR 23 at [23]-[24].
The defendant when first confronted by Constable May responded sensibly to her questions. When asked to leave the car, he responded appropriately in accordance with her directions. It was only after exiting the vehicle that his behaviour changed. He became threatening in manner toward Constable May and engaged in abusive and offensive language towards her. He did so in a public place at a time when Constable May was in uniform, and had arrived in a marked Police vehicle. The defendant’s abusive and offensive language was shouted loudly so as to be capable of being heard in the general neighbourhood. The defendant’s demeanour was such that Constable May called for Police backup. On arrival of the requested backup, the defendant was compliant with the Police requests.
The conduct of the defendant in my view was serious, in that it was disorderly behaviour directed toward a uniformed police officer in a public place, at a time when the officer was alone. It is important that the law protect police officers when they are undertaking their public duties. The law should also ensure that conduct which is undermining of police authority and of the public’s respect for the police force, is appropriately dealt with. The offence was not trifling.
Finally, it was submitted that the defendant’s employment prospects in the future may be impaired by the recording of a conviction. However, the submissions advanced were no more than speculation as to what might happen in unspecified circumstances, on unspecified occasions, at unspecified times. There was no evidence to support any of these speculative assertions, and in my view, no other extenuating circumstance was established.
Having regard to the foregoing, I do not consider that there is good reason to proceed without a conviction.
The Adequacy of the Costs Order
On the hearing of the appeal, counsel for the defendant outlined the defence case with respect to the two withdrawn counts – driving with prescribed level of alcohol and the breach of probationary licence. It was said that on the previous day, the defendant had been visiting Ms Meyer and their child. In the early evening, there had been some disagreement between them and he left alone to attend a function at a local football club. His case was that he walked to a relative’s home and then caught a taxi to the venue. He left his vehicle parked outside Ms Meyer’s home in Menard Street. He consumed a quantity of alcohol, and later returned to his vehicle. As he was cold, he engaged the heating system in the car for some time and subsequently went to sleep. The defendant claimed that he was awoken and surprised by the unexpected arrival of Constable May, and that this provided an explanation for his behaviour.

The Crown Solicitor on the hearing of the appeal confirmed that in the absence of Ms Meyer’s evidence, the prosecution had been unable to prove that he had driven the vehicle in the preceding two hours and as a result were not in a position to prove counts two and three. When Ms Meyer refused to testify, the decision was made to withdraw those counts.
The jurisdiction to award costs in summary proceedings is provided for in section 189(1) of the Summary Procedure Act 1921 (SA), which provides:
Subject to this section, the court may award such costs for or against a party to proceedings as the court thinks fit.
Rule 51 of the Magistrates Court Rules 1992 (SA) provides:
51.01Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
51.02For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.
51.03Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
Counsel for the defendant submitted that an allowance of $1,700.00 for costs should be made. Attention was drawn to the Magistrate’s Court Criminal Scale of Costs, effective from 17 April 2008, including the amount of $900.00 specified for “instructions, including all preparation for trial and attendances up to but not including attendance at a pre-trial conference” and $800.00 for “fee on brief, to include attendance for plea or withdrawal”. It was said that this claim was reasonable in all the circumstances.
Counsel for the Crown pointed out that oral reasons were given at the hearing for the costs award. Two considerations were identified by the Magistrate. Costs were awarded on the basis that the matter was set for trial from a licence application hearing, and, no pre-trial conference had been held.
It was submitted that not only was it the case that the discretion was not exercised capriciously, the history of the proceedings and the timing of their withdrawal justified the decision of the Magistrate to order costs in the amount of $600.00. Counsel referred to the following relevant matters said to support the order made by the Magistrate. The defendant was notified of the withdrawal of counts 2 and 3 on 29 January 2009, five days prior to trial. On the same day, the Police were informed that a statement could not be obtained from Ms Meyer. The trial itself had only been listed a fortnight earlier without pre-trial conferences or other hearings. The withdrawn charges were summary offences with little contentious factual content. Had the two matters proceeded, it would have been a simple contest concerning whether the defendant had driven. As a consequence, the matter was straightforward and required simple instructions.
An order for costs made in the Magistrates Court will not be disturbed unless some error of principle or irregularity is disclosed or it appears that the amount is manifestly excessive or inadequate.[44]
[44] SA Police v Leonard (1995) 64 SASR 390 at 394 (Debelle J).
The issue of costs in summary proceedings was considered by the Full Court of the Supreme Court in the matter of Konieczka v Police.[45] Perry J, with whom the others agreed, stated:
... the amount to be allowed was entirely a matter for the exercise of discretion. The discretion should not be circumscribed by any attempt to lay down any rigid rules or principles. Justification for departure from the scale may arise from a large variety of circumstances, including the complexity of the case, the seriousness of the charge, whether it was reasonable to brief senior counsel, the conduct of the prosecution or of witnesses for the prosecution, and other matters. Likewise, the amount allowed will be influenced by similar factors.
[45] Konieczka v Police (2006) 245 LSJS 458 at [41].
This paragraph was cited with approval by Debelle J in Curnow v Police:[46]
In paragraph 41 [of Konieczka v Police] Perry J discussed the circumstances in which a Magistrate might exercise the discretion to award costs on a basis other than that fixed in the First Schedule. His Honour clearly stated that the discretion is not to be circumscribed by any rigid rules or principles. In no respect did he fetter the exercise of that discretion. Instead, he clearly stated that a departure from the rule may be justified in a large variety of circumstances. He added that the amount to be allowed will be influenced by similar factors.
The factors to be considered include, the complexity of the case, the seriousness of the charge and the conduct of the prosecution or of witnesses for the prosecution.
[46] Curnow v Police (2008) 100 SASR 290 at 297.
In my view section 189(1) of the Summary Procedure Act provides a broad discretion to a Magistrate with respect to costs. The reference in Rule 51 of the Magistrates Court Rules to a successful party being entitled to costs does not fetter the statutory discretion. Rule 51 provides that it is subject to the provisions of any Act. The scale of costs provides a working lump sum guide but it is no more than that.
Section 189(1) confers a discretion on a Magistrate not only in relation to the making of an award of costs, but also in relation to the fixing of the amount of costs.[47] It is the Magistrate who hears the case who is in the best position to determine what level of costs should be awarded.[48] There is nothing in the conduct of the prosecution case that could be considered vexatious or frivolous. The prosecution withdrew two of its initial charges five days before trial when the appellant's former partner refused to co-operate as a witness. In the present proceeding, the preparation for trial would appear to have been modest if not minimal. There is little or no evidence that any substantive work was undertaken. This was a case where the Magistrate was entitled to award less than the lump sum amounts indicated by the scale of costs.
[47] Ling v Police (1996) 90 A Crim R 376 at 384 (Doyle CJ, Prior J and Nyland J); Haslam v Emu Air Charter Pty Ltd (1988) 200 LSJS 454 at [12] (Mulligan J).
[48] Haslam v Emu Air Charter Pty Ltd (1998) LSJS 459.
In my view there is a further consideration. Of the three charges before the court, two were withdrawn and one was the subject of the plea of guilty. In these circumstances it is artificial to treat the counts as though they were separate matters calling for separate costs orders. Having regard to this consideration it is my view that the award for costs was an appropriate award.
At the conclusion of the parties’ submissions, I suggested to counsel that in the event of my concluding that the appeal against the recording of a conviction should be dismissed, a just way to address the consequential issues arising on the appeal, was to record a conviction without further penalty and to make no order as to costs on either the summary proceedings or the appeal proceedings.
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.