Supreme Court of South Australia
(Magistrates Appeals: Criminal)
JOSEPH v POLICE
[2020] SASC 218
Judgment of The Honourable Justice Hughes (ex tempore)
29 October 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
The appellant pleaded guilty to one count of breaching an intervention order pursuant to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant had breached the term of the order prohibiting him from entering or remaining within 100 metres of the boundary of any premises at which the protected person resides or stays. The appellant was sentenced to a good behaviour bond of 15 months in the sum of $500 and a conviction was recorded for the offending.
The appellant appealed against the sentencing Magistrate’s decision to not exercise the discretion to not record a conviction. The appellant argued that good reasons existed to not record a conviction because:
• the offending itself could not be described as serious as it was only incidental;
• the Magistrate failed to take into account the passage of time between the offending that led to the imposition of the intervention order and the subject offending; and
• the Magistrate inadequately accounted for the lack of prior similar offending.
The respondent submitted that the sentencing Magistrate did not err in the exercise of the sentencing discretion as the subject offending was not inadvertent and could have been avoided, there was no evidence of insight such that personal deterrence was required, and the weight placed on the need for general deterrence was appropriate.
Held, per Hughes J granting the extension of time and dismissing the appeal:
1. The sentencing Magistrate adequately accounted for the benefits to the appellant favouring an exercise of the discretion and weighed this against the inherent public interest in recording convictions;
2. The sentencing Magistrate appropriately considered the appellant’s personal factors, his lack of antecedents, the intervention orders scheme and the circumstances of the offending before reaching the conclusion that it would not be appropriate to not record a conviction; and
3. It is important to treat breaches of intervention orders with a high level of seriousness to strongly deter such breaches and maintain the effectiveness of the scheme and therefore the nature of this type of offence does not lend itself to the court being more easily persuaded to not record a conviction.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Sentencing Act 2017 (SA) s 23, s 24, s 97; Magistrates Court Act 1991 (SA) s 42, referred to.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Saunders [2017] SASCFC 86; Police v Chilton (2014) 120 SASR 32, [2014] SASCFC 76; House v The King (1936) 55 CLR 499, applied.
R v Yousef [2005] SASC 203; Hodgins v Police [2008]…
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CaseChat Overview and Summary
The court examined whether the Magistrate's decision was based on relevant considerations, such as the breach not being inadvertent, the lack of evidence of insight, and the need for general deterrence. The court found that the Magistrate had considered these factors and that it was open to him to record a conviction. The court also considered whether the sentence was unreasonable or plainly unjust, but found that it was not. The Crown Solicitor argued that the Magistrate's exercise of discretion was undertaken on the basis of relevant considerations and it was open to him to record a conviction. The court agreed with this submission.
The court found that the Magistrate's decision was properly based upon the relevant considerations and that there was no error in the decision to record a conviction. The court also found that the sentence was not manifestly excessive or inadequate. The appeal against conviction was dismissed.
There were no final orders made by the court. The conviction and sentence imposed by the Magistrate were upheld.
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
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Ratio Decidendi
Legal Principle Established
The Crown Solicitor, on behalf of the respondent, argued that the Magistrate’s exercise of discretion was undertaken on the basis of relevant considerations and it was open to him to record a conviction. It was submitted that the Magistrate’s decision was properly based upon the fact that the breach was not inadvertent and could have been avoided, that there was no evidence of insight such that personal deterrence was required, and that the weight placed on the need for general deterrence was appropriate in light of the nature of the offending and the intervention order scheme.Consideration The task of the Court on appeal brought under s 42 of the Magistrates Court Act 1991 (SA). As the sentence involved the exercise of a discretionary judgment, the circumstances in which this Court on appeal can intervene with the sentenceare limited. The approach to be applied is that stated by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen:[7]As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.(footnotes omitted)[7] [2005] HCA 25, (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). The maximum penalty for a breach of s 31(2) of the Intervention Orders Act is a fine of $10 000 or two years’ imprisonment.The discretion to not record a conviction Pursuant to s 97 of the Sentencing Act, a court may, if it thinks that good reasons exist for doing so, discharge the defendant without recording a conviction, and without imposing any other penalty, on condition that the defendant enter into a good behaviour bond. Although there is no explicit definition of good reasons for the purposes of s 97, the factors listed under s 24 offer some guidance.[8] [8] R v Yousef [2005] SASC 203 at [42]-[47] (Layton and Sulan JJ). This case considered s 16 and s 39 of the former Criminal Law (Sentencing) Act 1988 (SA) which have been replicated in s 24 and s 97 of the current Sentencing Act 2017 (SA). Pursuant to s 24 of the Sentencing Act, a court may only decide to not record a conviction if the penalty to be imposed is a fine, community service, or both and the Magistrate is of the opinion that:a) the defendant is unlikely to commit such an offence again; andb) there exists good reasons to not record a conviction, having regard toi. the character, antecedents, age, or physical or mental condition of the defendant; orii.the fact that the offence was trifling; or iii.any other extenuating circumstances.