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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moore v Police

Details

AGLC: Moore v Police [2005] SASC 436
Case: [2005] SASC 436
Decision Date: 16 November 2005

CaseChat Overview and Summary

Moore was the appellant in this case, which was heard in the court of appeal. Moore pleaded guilty to four minor offences under the Summary Offences Act 1953. The issue before the court was whether the primary judge exercised their discretion to not record a conviction appropriately. The court had to consider the relevant principles in exercising this discretion, including the nature of the offences, the appellant's previous criminal history, and any other relevant factors.

The court held that the primary judge failed to provide adequate reasons for deciding to record the conviction. The court emphasised the importance of providing reasons when exercising the discretion not to record a conviction, as it allows for accountability and transparency in the judicial process. The court noted that the offences were minor in nature and that the appellant had no prior convictions, which were factors that could have been considered in favour of not recording the conviction. However, the primary judge did not provide any reasons for their decision, leading the court to conclude that the discretion was miscarried.

As a result of this error, the appeal was allowed. The court did not provide specific orders but indicated that the matter would be remitted to the primary court for reconsideration, with the appropriate exercise of discretion and the provision of reasons. The court's decision highlights the importance of providing reasons when exercising discretion in criminal cases and the need for courts to ensure that their decisions are transparent and accountable.

Orders