McDermott v Police - [2014] SASC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCDERMOTT v POLICE
[2014] SASC 175
Reasons for Decision of The Honourable Justice Nicholson
19 November 2014
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
On 26 June 2014, following a short trial in the Adelaide Magistrates Court, the appellant was found guilty of the offence of damaging property and the offence of assault contrary to s85(2) and s20(3) of the Criminal Law Consolidation Act 1935 (SA) respectively. The offences were committed in the context of what is colloquially known as a “road rage” incident.
On 4 August 2014, convictions were recorded for both offences and the appellant was required to enter into a bond, in the amount of $200, to be of good behaviour for two years. The appellant now appeals on the basis that the Magistrate erred in failing to exercise the discretion available not to record convictions. The appellant seeks an order that both convictions be set aside.
Held: Appeal dismissed. No error in the Magistrate’s reasoning has been identified which would call into question the exercise of her discretion. It was open to her Honour to find that the personal factors in support of an order not to record a conviction were outweighed by the nature and seriousness of the offending and the need to deter others from engaging in similar behaviour.
Criminal Law Consolidation Act 1935 s20, s85; Criminal Law (Sentencing) Act 1988 s15, s16, s38, s39; Magistrates Court Act 1991 s42, referred to.
R v Richmond [1920] VLR 9; Siganto v The Queen (1998) 194 CLR 656; Toohey v Police [2001] SASC 44; Reeves v Police (1997) 70 SASR 451; Police v Kennedy [2005] SASC 173; Tazebe v Police [2013] SASC 194; R v O'Toole [2013] SASCFC 18; R v Fowler [2006] SASC 18; R v Richards [2006] SASC 60; Ferguson v Police [2006] SASC 196; Zafry v Police [2009] SASC 191; R v Yousef [2005] SASC 203; Hodgins v Police [2008] SASC 176; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Naera v Police (1995) 184 LSJS 326; Taylor v Hayes (1990) 53 SASR 282; Ware v Betts (1987) 134 LSJS 212; Wessling v Police (2004) 88 SASR 57; Chilton v Police [2013] SASC 205; Police v Chilton [2014] SASCFC 76; Robinson v Police [2014] SASC 155; Noble v Police [2014] SASC 156, considered.

MCDERMOTT v POLICE
[2014] SASC 175
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 26 June 2014, after a short trial in the Magistrates Court, the appellant was found guilty of the offence of damaging property and the offence of assault contrary to s85(2)[1] and s20(3) respectively of the Criminal Law Consolidation Act 1935.
[1] The particulars of the charge, as proved, included being recklessly indifferent as to whether the conduct would damage property (s85(2)(b)) rather than intending to damage property (s85(2)(a)).
On 4 August 2014, convictions for the two offences were recorded. The appellant was discharged but without penalty upon condition that he enter into a bond, in the amount of $200, to be of good behaviour for two years. It was a condition that the appellant would be required to appear before the court for sentence if he failed, during the term of the bond, to comply with its conditions.[2]
[2] In so doing, the Magistrate exercised the power available to her pursuant to s39 of the Criminal Law (Sentencing) Act 1988.
The appeal is against the order to record convictions. The single ground of appeal is that in recording the convictions the Magistrate erred in the exercise of the discretion available to her.
Circumstances of the offending
The offences were committed in the context of what is, colloquially, described as a “road rage” incident. The appellant, the victim and a third person were in their respective motor vehicles at an intersection on Main North Road, Parafield. When the lights turned green, the three vehicles took off and, almost immediately thereafter, engaged in some sort of lane changing manoeuvre. It would appear that the appellant perceived his own vehicle to have been either rudely or dangerously cut off by the victim’s vehicle. The appellant thereupon tailgated the victim’s vehicle, flashed his headlights and raised his fist gesticulating for the victim to pull over. The victim reacted and gave the appellant “the finger”.
When the victim pulled up at the next intersection the appellant pulled up beside him, got out of his car and approached the victim’s car. What ensued was described by the Magistrate as follows.[3]
You were aggressive and angry. You pulled your vehicle up at the lights, got out of your vehicle, stood waiting for [the victim’s] vehicle, motioned at him, walked up to his vehicle and swiped at the mirror with enough force to cause it to swing. You went to his door, opened it and leant into his vehicle, took him by the shirt and shook him.
The Magistrate rejected the defence case that the appellant was acting in self-defence. There was no good reason for the appellant to leave his vehicle at the intersection and to approach the victim’s vehicle. The assault that was perpetrated was without lawful justification. The Magistrate disbelieved critical aspects of the appellant’s evidence and found that aspects were fabricated.[4]
[3] Police v McDermott, Magistrates Court of South Australia, MCHHL-12-7344, Remarks on Penalty, 4 August 2014 at [5].
[4] A sentencing Judge is not entitled to treat, as a circumstance of aggravation, the fact that an offender’s testimony has been disbelieved, see R v Richmond [1920] VLR 9 at 12 and Siganto v The Queen (1998) 194 CLR 656 at 663-664 and 666 (Gleeson CJ, Gummow, Hayne and Callinan JJ). Nevertheless, a sentencing court is entitled to take this matter into account when assessing as a mitigatory factor, the extent of any contrition and remorse and its relevance to prospects of rehabilitation.
It is important when characterising such an event by using the vernacular “road rage” not to overstate the seriousness of the assault. The Magistrate was alive to this when she observed:[5]
While it may be said that the assault in this matter was not particularly serious in that no physical harm was inflicted, your actions in opening [the victim’s] car door whilst he was in his vehicle, stationary at traffic lights and grabbing at his clothing would no doubt have been frightening.
[5] Remarks on Penalty at [3].
Nevertheless, in Toohey v Police[6] Olsson J made the following observations.
Whilst I agree that the mere fact that the assault under consideration arose in the context of a “road rage” incident cannot properly be resorted to as a justification for elevating an offence of common assault above its inherent gravity, the fact remains that road rage incidents are becoming a matter for serious social concern. The Chief Justice stressed, in Reeves, that the need for general deterrence in such cases does necessitate a stern response. As he put it “A clear message needs to be given to the community that frustration on the road is not to be translated into violence.”
The Magistrate cited, with approval,[7] remarks to similar effect by Doyle CJ in Reeves v Police[8] and Gray J in Police v Kennedy.[9]
[6] [2001] SASC 44 at [22].
[7] Remarks on Penalty at [7].
[8] (1997) 70 SASR 451.
[9] [2005] SASC 173.
The Magistrates Remarks on Penalty
After describing the nature of the offending in the manner already explained, the Magistrate said that general and personal deterrence were important considerations when sentencing with respect to acts of violence arising from anger and frustration on the road, that such offending is of concern in the community and that penalties to be imposed must reflect this concern.
Her Honour drew attention to the effect the offending had on the victim, as described in his impact statement, and also to the fact that other road users who witnessed the events were sufficiently concerned to stop at the scene and to speak with the victim or to later contact police of their own volition.
The incident caused or at least contributed to significant emotional and psychological distress and anxiety to the victim for some time thereafter. He found it difficult to go outside and was unable to attend work for upwards of 12 weeks. He became fearful to drive and very withdrawn.
The Magistrate observed that the appellant had no history of violence and that she had been provided with a number of letters of support describing the appellant as a good person. However, her Honour noted that the appellant worked in the nursing profession which, in her view, should have provided him with some insight into his own behaviour and with an ability to cope with people who challenge him without having to resort to violence. After hearing the appellant give his evidence at the trial, the Magistrate formed the impression that he had a false sense of his role in the wider community and a sense that he had a right to challenge behaviour he deemed to be unacceptable.
The Magistrate turned to the question of whether convictions should be recorded, this being the primary focus of defence counsel’s submissions. It was submitted that convictions would be likely to have a significant impact on the appellant’s career. The Magistrate accepted this submission. Her Honour also accepted that, according to the Nursing Board standards, a conviction is something of the “highest relevance in deciding whether a health practitioner’s criminal history is relevant to the practise of their profession”.[10] Her Honour also found that the appellant had worked hard for his qualifications.[11]
[10] Remarks on Penalty at [9].
[11] The appellant came to the study of nursing as a mature age student and had only relatively recently incurred a not insignificant HECS debt for tuition fees.
The Magistrate expressed the view that it was important for regulatory authorities and employers such as those in the appellant’s profession to be aware of such matters.
It is a matter for those authorities, knowing all the facts to determine whether your conduct accords with the standards of the profession.[12]
Her Honour then considered, again, the nature of the offending and said this.[13]
I do accept that these offences were not the most serious offences of their kind. I do accept that it is unlikely that you will offend in this way again. However, your offending cannot be described as trivial or minor. These were not momentary or impulsive actions like those in Lumb v Police to which counsel has referred.
[12] Remarks on Penalty at [10].
[13] Remarks on Penalty at [11].
Her Honour indicated that she did not think the imposition of a fine or community service was the appropriate penalty.[14] Given that the appellant had not demonstrated, in his history, a propensity for violence, that the offending was the result of a serious error of judgment and that there was a low risk that it would be repeated, her Honour considered it appropriate to impose a bond pursuant to s39 of the Criminal Law (Sentencing) Act. Her Honour concluded her remarks with the following.[15]
I have thought carefully about whether it is appropriate in all the circumstances to deal with your offending without conviction. While the impact that goes with convictions weighs heavily, I have concluded that the seriousness of your offending and the importance of deterring this sort of offending dictates against dealing with these matters without conviction. You are convicted for both offences. I impose one penalty, a bond in the sum of $200 for two years to be of good behaviour. It will be a further condition of the bond that you return for resentencing (sic) in the event the bond is breached. In other words, if you offend again within the next two years.
[14] Thus precluding resort to s16 of the Sentencing Act.
[15] Remarks on Penalty at [13].
The legislative basis for refraining from entering a conviction
Where an offence is properly characterised as “trifling”, a sentencing court has the power to discharge an offender without penalty and without recording a conviction pursuant to s15 of the Sentencing Act. The Magistrate did not proceed under this section and it has not been suggested that she ought to have done so. Under s16 of the Sentencing Act, a discretion arises to impose a penalty but not record a conviction if certain preconditions are met. One of the preconditions is that the sentencing court proposes to impose either a fine or a sentence of community service, or both. In the present case, the Magistrate made it plain that she did not consider the imposition of a fine or community service to be the appropriate penalty in all the circumstances. No criticism of the Magistrate has been raised in this respect.
In her consideration of whether or not to record a conviction, the Magistrate had regard to the power available to her under s39 of the Sentencing Act, which is in the following terms.
39—Discharge without sentence on defendant entering into bond
(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.
Having decided to impose a bond pursuant to the power available under s39, the discretion not to record a conviction fell to be exercised if the Magistrate “[thought] that good reason exists for doing so”. Unlike s16, no specific factors to be considered are identified by the terms of s39. As in the case of the discretion to suspend a prison term under s38 of the Sentencing Act, where the same formulation is employed, the statutory test – the requirement to find “good reason” admits of no qualification or gloss.[16]
[16] In the case of s38, see for example, R v O'Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed); R v Fowler [2006] SASC 18 at [58] (Gray and Layton JJ); R v Richards [2006] SASC 60 at [58]-[63] (Sulan J with whom Doyle CJ and Nyland J agreed); Ferguson v Police [2006] SASC 196 and Zafry v Police [2009] SASC 191.
In Tazebe v Police[17] I identified the approach to be taken to the question of whether or not to record a conviction under s39. I set out what I said there.
When exercising the powers conferred by s39, a sentencing judicial officer has a discretion whether to discharge the defendant with or without recording a conviction. Whilst s39 gives rise to a wide discretion in this respect,[18] it must be exercised judicially. The section does not specify any particular matters to which the court must have regard.[19] Gray J observed the following in Hodgins v Police.[20]
There is no requirement for the Court to have regard to particular factors in arriving at the conclusion that good reason exists to discharge the defendant without recording a conviction. No doubt as observed in Yousef, the factors to be considered by the Court in exercising the section 39 discretion may be similar to the factors that arise under section 16. However, it is important to recognise that the sections have different work to do and operate in different circumstances.
The factors relevant to the cognate power under s16 of the Criminal Law (Sentencing) Act to refrain from recording a conviction include (but are not limited to) the character, antecedents, age or physical or mental condition of the defendant or the fact that the offence was trifling or any other extenuating circumstances.
On the evidence before the Magistrate, dealing with the appellant pursuant to s39 was a sentencing option open to her.
[17] [2013] SASC 194 at [12]-[13].
[18] R v Yousef [2005] SASC 203 at [47] (Sulan and Layton JJ).
[19] R v Yousef at [81] (White J).
[20] [2008] SASC 176 at [15], footnote omitted.
The approach on appeal
The only question, on appeal, is whether her Honour erred when discharging the appellant by recording convictions rather than without recording convictions. The appeal to this Court is pursuant to s42 of the Magistrates Court Act 1991. The decision whether or not to record a conviction involves the exercise of a discretion. An appeal from such an exercise of discretion is of the nature described by Dixon, Evatt and McTiernan JJ in House v The King.[21]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[21] (1936) 55 CLR 499 at 504-505; see also Dinsdale v The Queen (2000) 202 CLR 321 at 324-325; Naera v Police (1995) 184 LSJS 326 at 329; Taylor v Hayes (1990) 53 SASR 282 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 57 at 60.
The appellant’s contentions and resolution of the appeal
In this case, the Magistrate concluded that the seriousness of the offending and the need to deter this type of offending was such as to “dictate” against not recording convictions.
The appellant submitted that the Magistrate dealt with the seriousness of the offending inconsistently. Her Honour recognised that the circumstances of the appellant’s offending were such that “the assault... was not particularly serious in that no physical harm was inflicted” and that the offences “were not the most serious offences of their kind” and “that it is unlikely that [the appellant] will offend in this way again”. However, her Honour went on to rely on the seriousness of the offending as a factor when refusing to exercise the discretion not to record a conviction. Counsel submitted that the Magistrate correctly characterised the offending as not particularly serious early in her Remarks but, at the time of exercising the discretion, she relied on the offending as being more serious than it was.

This attack on the Magistrate’s reasoning raised the issue of whether it could be said that the Magistrate either mischaracterised the seriousness of the offending or placed undue weight on the seriousness of the offending as correctly characterised. In the circumstances of this matter, it doesn’t matter which of these descriptions of the asserted error is adopted. I do not need to participate (further[22]) in the present debate among some of the Judges in this Court concerning the relevance, if any, to the House v The King formulation of a finding that a court has placed undue weight or insufficient weight on a discretionary consideration.[23]
[22] See, Chilton v Police [2013] SASC 205.
[23] See, for example, Police v Chilton [2014] SASCFC 76; Robinson v Police [2014] SASC 155; Noble v Police [2014] SASC 156.
The Magistrate described her findings relevant to the seriousness of the appellant’s conduct. However, as always “seriousness” is a relative term. It was not incorrect to describe the assault, per se, as “not particularly serious” in that no physical harm resulted. However, distress and emotional harm of real significance did result. In addition, the overall context rendered the incident particularly frightening. When considered in its overall context, as her Honour did, the offending was of a serious nature. In my view, the Magistrate fairly represented and adopted a proper approach to her characterisation of the offending behaviour.
Counsel also complained that the Magistrate acted under a misappropriation that unless a conviction were to be recorded, the appellant’s employer would not become aware of the offending behaviour. In fact, the present employer was made aware by the appellant. The appellant’s position has been or is in the process of being reviewed as a result. However, as the respondent pointed out, the Nursing Board which oversees the registration of nurses and future employers also have a potential interest in whether or not a conviction for such offending has been entered. The Magistrate observed:[24]
I accept you have worked hard for your qualifications. On the other hand it is important for regulatory authorities and employers in your profession to be aware of such matters. It is a matter for these authorities, knowing all the facts to determine whether your conduct accords with the standards of the profession.
This was a pertinent observation and recorded a matter to which the Magistrate was obliged to have regard.
[24] Remarks on Penalty at [10].
Counsel complained that by referring to the offending as not “trivial or minor” and involving actions that were “not momentary or impulsive actions like those in Lumb v Police”, the Magistrate took account of matters that were irrelevant to the exercise of the discretion. I disagree. On the evidence, it was open to the Magistrate to characterise the offending in this way; such characterisation is consistent with her Honour’s other observations concerning the nature of offending which had its serious elements and not so serious elements. It was appropriate to take these additional features of the offending into account when undertaking the balancing exercise before her Honour.
Counsel also submitted that, in addition to mischaracterising the seriousness of the offending at the time of exercising the discretion, the Magistrate failed to have regard to important matters personal to the appellant, in particular, the effect a conviction might have on employment prospects. Again, I disagree. Upon a reading of the Remarks on Penalty as a whole, it is plain that the Magistrate was very aware of the many matters submitted by counsel as favourable to the appellant, including, in particular, the risk that a recorded conviction might pose to his future prospects, the fact that he had no record of previous violence and was otherwise of good character. Her Honour specifically noted that “the impact that goes with convictions weighs heavily”[25] at the point where she imposed the conviction.
[25] Remarks on Penalty at [13].
I am unable to find any error of the type required by House v The King[26] in the approach taken by the Magistrate to the exercise of the discretion. It is not for this Court to substitute its own view in the absence of error. The Magistrate reviewed in detail the nature and “seriousness” of the offending and the very real need to sentence in this area in a way that will operate to deter others from similar behaviour. It was within the discretion available to her Honour to find that, in this case, these considerations outweighed the personal factors relied on by the appellant in support of an order not to record a conviction.
[26] [1936] HCA 40, (1936) 55 CLR 499 at 504-505.
The appeal is dismissed. I will hear the parties as to any consequential orders.