MacDonald v Police

[2011] SASC 52

Supreme Court of South Australia

(Magistrates Appeals: Civil)

MACDONALD v POLICE

[2011] SASC 52

Judgment of The Honourable Chief Justice Doyle (ex tempore)

7 April 2011

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - CONVICTIONS

Appellant was charged with the offences of trespass and theft in the Magistrates Court - unexpectedly the appellant's legal representative was not able to appear - the appellant pleaded guilty - the Magistrate did not explain to the appellant that he had the power to refrain from recording a conviction under s 16 of the Criminal Law Consolidation Act 1935 (SA) - the appellant did not make submissions as to whether a conviction should be recorded or not - the Magistrate recorded a conviction and ordered the appellant to perform 80 hours of community service within nine months - appellant appealed against the recording of a conviction - whether the Magistrate erred in recording a conviction in the circumstances of the case.

Held: appeal allowed.  The Magistrate's order to record a conviction was set aside.

Summary Offences Act 1953 (SA) s 17A(1); Criminal Law Consolidation Act 1935 (SA) s 16, s 39, s 134; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39, referred to.

MACDONALD v POLICE
[2011] SASC 52

Magistrates Appeal:  Criminal

1. DOYLE CJ (ex tempore): Mr MacDonald pleaded guilty in the Magistrates Court to two charges. The first was an offence of trespass contrary to s 17A(1) of the Summary Offences Act 1953 (SA). The maximum penalty for this offence is a fine of $1250 and imprisonment for a maximum of six months. The second offence was that of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The maximum penalty for that offence is imprisonment for 10 years.

2. Mr MacDonald had arranged legal representation but unexpectedly at the very last minute his lawyer was not able to appear for him when Mr MacDonald came before the court.  Mr MacDonald pleaded guilty then and there and the matter was disposed of.  The Magistrate recorded a conviction and ordered him to perform 80 hours of community service within nine months.  Mr MacDonald appeals against the sentence.

   Grounds of appeal

3. There are two grounds of appeal.

4. The first is that the Magistrate did not draw to Mr MacDonald’s attention the power that the Magistrate had to refrain from recording a conviction. The Magistrate had power to refrain from recording a conviction under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) and under s 39 of that Act.

5. The complaint is that had the Magistrate drawn this power to Mr  MacDonald’s attention, and had the Magistrate invited him to put submissions on the matter, facts would have emerged which would have persuaded the Magistrate not to record a conviction. 

6. The second ground is that in any event the Magistrate erred in recording a conviction.

   Facts

7. On the day in question Mr MacDonald had been consuming alcohol.  He was intoxicated.  During the day he went to the home of the victim, a young man known to him.  Mr MacDonald had a friend with him, they knocked on the door and another occupant of the house opened the door.  The occupant told Mr MacDonald to leave.  Mr MacDonald walked into the house, went to the victim’s bedroom and took three sports jumpers.  There is no suggestion of any violence or threat.  As he left, Mr MacDonald made what was probably intended as a jocular remark.  The next day Mr MacDonald made full admissions to the police and returned the jumpers.  He pleaded guilty.

   The Magistrate’s reasons

8. The Magistrate said that what Mr MacDonald did was serious and he should have known not to do it.  The Magistrate made a valid point that the circumstance that Mr MacDonald was intoxicated did not excuse what he did.

9. Mr MacDonald was 19 and a half years of age at the time of the offence.  He had one prior conviction only, which was for being on licensed premises from which he had been barred.  The Magistrate said that because the offence was serious, that is the new offence, and because Mr MacDonald had a prior conviction he proposed to record a conviction.  The only other penalty that he imposed was an order that Mr MacDonald perform 80 hours of community service within nine months.

   Consideration of appeal

10. When a defendant appears unrepresented and pleads guilty to an offence that is of any seriousness, the Magistrate should identify to the defendant significant matters that the Magistrate will have to consider, for example, the possibility of an order for imprisonment.  In a case like this with a young man like this, an obvious issue was the question of whether a conviction should be recorded.

11. This is a matter that the Magistrate should have drawn to Mr MacDonald’s attention.  Mr MacDonald does not state clearly in his affidavit whether or not the Magistrate did this.  He says that the Magistrate asked him to describe what had occurred, to explain why he committed the offences, and asked him about the nature of his employment.  My impression is that the Magistrate was inquiring into the matters relevant to the decision whether or not a conviction should be recorded.  I am inclined to think that the Magistrate gave Mr MacDonald an adequate opportunity to address this question but I need not decide the point.

12. There are some further matters.  Mr MacDonald says that because of the last minute absence of his lawyer, he found it difficult to express himself, not expecting that he would have to do so and not being prepared to do so.  I am prepared to accept the evidence that he had engaged a solicitor who was unable to appear at the very last minute.

13. His solicitor had a significant reference with him but because the solicitor was not there any longer Mr MacDonald did not have access to it.  In the reference in question Mr MacDonald’s employer said that Mr MacDonald was a good worker.  More importantly he made the point that he was likely to lose his employment if a conviction was recorded because of security conditions governing his employment.  It is evident that the employer is aware of the court proceedings and I infer from the letter that the events themselves will not cost Mr MacDonald his employment with this particular employer, but rather the recording of a conviction.

14. Having regard to the circumstances in which this reference and other relevant matters were not put before the Court, I will consider the further matters put forward on appeal and then consider whether had these matters been brought to the Magistrate’s attention he would have, or should have, refrained from recording a conviction.

15. The offence was a spontaneous prank.  I have no doubt the Magistrate realised that.  There was no violence or threat.  Mr MacDonald cooperated with the police.  Again, I have no doubt that the Magistrate was aware of these two points.  Mr MacDonald pleaded guilty at the first opportunity.  He was a young man with no relevant history of offending.

16. He had employment.  He says that he has changed his ways since this incident occurred.  He has reduced his consumption of alcohol, apparently recognising that this was a problem.  The recording of a conviction is likely to affect adversely his employment prospects in the future.

17. In my opinion the Magistrate would have been alert to each and all of these matters except for the last.  They are either implicit in the circumstances of the offending, or were to be found in the police apprehension report.  The Magistrate would have been aware of the general significance of a conviction, although not its potential significance in this particular case.

18. Even if the Magistrate had failed to give Mr MacDonald an opportunity to address him, and I am not satisfied that he did, there is no indication that that particular failure would have caused injustice.  That leaves the question of whether, in any event, the Magistrate erred in recording a conviction.

19. I agree that the offending conduct had to be taken seriously even though it was a prank.  But it is significant there was no force used and no threat of violence.  It must have been an unsettling experience for the occupant of the house, but I doubt whether the occupant would have feared that he was about to suffer any harm even though he was intimidated.  The prompt return of the clothing and the prompt admissions to the police are also relevant.

20. Considering the whole matter afresh I am persuaded that the Magistrate erred in recording a conviction.  If it is appropriate for me to exercise the sentencing discretion myself, I do not propose to.  I agree a conviction should not be recorded.

21. The letter from the employer that was not tendered is a relevant factor; also the earlier conviction was for a minor matter.  The circumstances of that earlier conviction have been explained to me and I am confident in the circumstances that they were not fully explained to the Magistrate.

22. I am persuaded that a conviction should not be recorded not simply because this is Mr MacDonald’s first significant offending, but because of that combined with the nature of the offending, the indications that he has learned a lesson, his age and his otherwise good prospects.  For those reasons I allow the appeal.  I set aside the order recording a conviction, but leave standing the Magistrate’s order that Mr MacDonald perform 80 hours of community service within nine months.

23. I adjourn the question of costs of the appeal.