Moore v Police

[2005] SASC 436

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

MOORE v POLICE

Judgment of The Honourable Justice Debelle (ex tempore)

16 November 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

Appeal against conviction - appellant pleaded guilty to four offences against Summary Offences Act 1953 - offences minor in nature - appellant had no prior convictions - failure to provide reasons for recording conviction - relevant principles - held, discretion not to record conviction miscarried - appeal allowed.

Criminal Law (Sentencing) Act 1988 s 9(2), s 16, s 18A, referred to.
Cross v Police [2001] SASC 47; O'Hanlon v Police (1994) 62 SASR 553; Tame v Fingleton (1974) 8 SASR 507, considered.

MOORE v POLICE
[2005] SASC 436

Magistrates Appeal:  Criminal

1. DEBELLE J.        This appeal against conviction arises in the following way.

2. On 19 September 2005 in the Magistrates Court at Kadina, the appellant pleaded guilty to four offences.  She was represented by counsel.  The first offence was behaving in a disorderly manner in a public place in Kadina.  The appellant had been blowing an air horn loudly on a number of occasions over a period of about one half hour.  She received a warning from the police but later resumed that behaviour.  The other three offences were committed a little later on the same evening, when the police stopped the appellant because she continued to blow the air horn.  They were the offence of assaulting a police officer in the execution of his duty, using offensive language in a public place, and carrying an offensive weapon, namely, a black handled folding knife with a 10 cm blade.  All of the offences had occurred in a public street in Kadina on 5 September 2005.

3. The magistrate convicted the appellant on her pleas of guilty. On the count of disorderly behaviour, he fined her $100 plus levies and costs totalling $162. In relation to the other three counts he convicted the appellant and fixed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act1988 (“the Sentencing Act”). He did not, however, fine her but required her to pay court fees, levies and costs totalling $295. He ordered the forfeiture of the knife and the air horn to the Crown. He released the appellant on a bond in the sum of $100 to be of good behaviour for a period of 12 months, to be returned to the court for re‑sentencing if she should offend again during the term of the bond.

4. The appellant appeals against the fact that a conviction was recorded.  She does not appeal against any of the monetary penalties imposed.  Before she was sentenced, her counsel had submitted that this was an appropriate case not to record a conviction.

5. The magistrate gave no reasons for refusing the application not to record a conviction. It is desirable to give brief reasons for such a refusal: O’Hanlon v Police (1994) 62 SASR 553 at 554 - 555. I acknowledge that magistrates are very busy and have long lists to deal with. However, on this occasion, the magistrate gave relatively extensive reasons. It would not have been difficult for the magistrate to state briefly why he did not accede to the application not to order a conviction. There will, of course, be many cases where it will be unnecessary to address the question whether it is appropriate to record a conviction. However, in those cases where it is submitted the appellant could be released without recording a conviction, it is desirable, if not necessary, for a magistrate to provide reasons why he intends to convict the defendant.

6. The absence of reasons does not of course affect the validity of the conviction: see s 9(2) of the Sentencing Act. However this Court is able to set aside the conviction if reasons are not provided: Cross v Police [2001] SASC 47 at [32]. It is necessary for me to consider whether there is any basis to interfere with the decision, that is to say, to examine whether there has been a failure properly to exercise a discretion which the law invests in the magistrate: Tame v Fingleton (1974) 8 SASR 507 at 510.

7. None of the offences are particularly serious.  The first offence simply consists of the appellant making a nuisance of herself at about 10 to 10.30 in the evening.  She was spoken to by police but later resumed blowing the air horn.  After the air horn had been blown on the later occasion, the police stopped the vehicle in which the appellant was a passenger and spoke to the driver.  While the police were speaking to the driver, the appellant became abusive and began to swear at the police officers.  By this time, the appellant had got out of the car.  She was on crutches. She was informed that she was being arrested for using abusive language.  The police officers took her by the arm to walk her to the police vehicle.  The appellant tried to pull away.  She swung one of her crutches and hit a police officer on the upper left leg.  The appellant was restrained and her crutches taken from her.  She was walked to the police vehicle where she was searched.  In the course of the search, the police found the knife which is the subject of the fourth offence.

8. The offending was quite minor, amounting to little more than the appellant making a thorough nuisance of herself.  The air horn was no doubt annoying to those nearby, but standing alone is not the kind of offence which would require a conviction, particularly in the case of a person who has no prior convictions as is the case with this appellant.  There was no suggestion that the use of the language caused any undue offence.  I certainly do not believe it would have caused any offence to the police officers whose duties unfortunately mean that they have to endure the use of abusive language.  The assault on the police officer could not have been serious, particularly as this appellant was on crutches.  There was no suggestion that the police officer was in any sense injured when struck by one of the crutches.  There was no suggestion that the appellant was going to use the knife.  It is important to note that the police became aware of the knife only after they had searched the appellant.  As the appellant has today explained, she had been using the knife earlier in the day, when gardening, and had forgotten the fact that it was in her pocket.

9. Section 16 of the Sentencing Act requires that the court must first be satisfied that the appellant will not commit these offences again. If it cannot be so satisfied, it is not possible to apply s 16. If it is satisfied, the court can then have regard to the issues listed in para (b).

10. There are I think grounds for concluding that the appellant will not offend again.  The offending occurred while she was taking medication.  She is proceeding with her recovery from the drug induced psychosis, which she had suffered not long before this offending.  In addition, she is now living with her parents and, as the magistrate knew, is employed in their business.  She informs me today that she continues to be employed in that business.  Although the offending could not be described as trifling, it was on any view not serious.  It amounted to no more than what the appellant herself acknowledges was stupid behaviour on this occasion.  The appellant has no prior convictions.  The short period in police custody has been a salutary lesson for her.  In short, the appellant is still very young, she is living at home and she has employment in her parents’ business.  A conviction has a real potential to be a handicap in gaining employment, particularly the offence of carrying an offensive weapon which, when viewed alone and without any explanation of the circumstances, would appear to be quite serious.  As is apparent from these reasons, the carrying of that knife on this occasion did not in any respect constitute a serious offence.

11. There are I think good reasons for not recording a conviction.  In other words, I take the view that the magistrate has failed properly to exercise his discretion whether or not to impose a conviction.  In all the circumstances, the appeal will be allowed.  The order of the magistrate is varied by deleting that part which records a conviction in respect of each of these offences.  In all other respects, the order of the magistrate will stand.

12. The orders of the court will therefore be:

    1.Appeal allowed.

    2.Vary the order of the magistrate made on 19 September 2005 by deleting that part of the order which records a conviction in respect of each of the four offences to which the appellant had pleaded guilty.  In all other respects, the order of the magistrate stands.

    3.There will be an order that the respondent pay the appellant’s costs in the sum of $111.