Neagle v Police - [2010] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NEAGLE v POLICE
[2010] SASC 181
Judgment of The Honourable Justice Vanstone
30 June 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Appeal against sentence - appellant was found guilty of theft and given a suspended sentence of three months imprisonment - argued that sentence was manifestly excessive and that the magistrate erred in recording a conviction - offence committed in the course of employment and in a position of trust - whether fresh evidence as to the appellant's prospects of future employment should be received.
Held: evidence produced as to employment was not fresh evidence - the offending was too serious to justify no conviction being recorded - the term of imprisonment was within the magistrate's discretion - appeal dismissed.
Criminal Law Consolidation Act 1935 s 134(1); Magistrates Court Act 1991 s 42(4); Criminal Law (Sentencing) Act 1988 s 16, referred to.

NEAGLE v POLICE
[2010] SASC 181
Magistrates Appeal

VANSTONE J: After a trial in the Magistrates Court, the appellant was found guilty of theft, contrary to s 134(1) Criminal Law Consolidation Act 1935. The magistrate convicted the appellant and sentenced him to imprisonment for three months, suspended upon his entering into a bond in the sum of $10 to be of good behaviour for two years.
He now appeals, arguing that the sentence imposed was manifestly excessive and that the magistrate erred in recording a conviction.
Background
The circumstances of the theft were serious. The appellant was employed at the Adelaide Airport as a security officer. On the day of the offence he was engaged in duties as a bag loader at a security check point equipped with an x-ray machine. The victim, a passenger, placed several items of personal property in a small plastic tray for passage through the machine. They included his wallet, which contained at least one $50 note. The appellant’s role included pushing and guiding the tray through the x-ray unit. While the tray made its way through, the victim passed under the metal detection arch and proceeded to the other side of the x-ray machine to collect his property.
Another passenger, a woman, was behind the victim and saw him place his belongings in the tray. She then saw the appellant place his hand in the tray and remove a $50 note from the victim’s wallet. She saw the appellant place it in his pocket. These facts were found proved by the magistrate. According to the female passenger, she then approached the victim and told him what she had seen. Overhearing this, the appellant left his position, moved to the other side of the conveyor belt, placed his hand between the straps of the machine and into the body of the unit and then pulled his hand out, now holding the note, as if he had recovered it. He then presented it to the victim.
The appellant gave evidence before the magistrate asserting that he did not remove any money from the victim’s wallet. He was disbelieved. The magistrate had the benefit of CCTV footage which confirmed some aspects of the events as described by the female passenger.
In sentencing the appellant, the magistrate observed that the offence was a “serious breach of trust”. He said, in effect, that the appellant occupied a position of authority and trust and that the public had a right to expect that, while under compulsion to surrender their property for examination, it would not be handled in any way contrary to their rights, let alone stolen. The magistrate referred to the fact that the appellant’s counsel had suggested that no conviction should be recorded. He said that he considered that the offence was too serious to be dealt with in that way. He considered that a term of imprisonment was “necessary and warranted”.
Arguments on appeal
In this Court it is argued that having regard to the evidence of good character placed before the magistrate and the appellant’s prior good record, imprisonment should not have been imposed, nor a conviction recorded. Ms McCrohan, for the appellant, argued that although an abuse of trust was involved in the offence, the appellant’s crime was not to be compared with offences committed by solicitors, bankers, public servants or the like. Ms McCrohan argued that the fact that a conviction was recorded indicated that the magistrate had erred in balancing the relevant competing considerations. There was nothing in his remarks to show the manner in which the magistrate had weighed the factors relevant to recording a conviction. Although the magistrate referred to the suggestion that a conviction should not be recorded, he did not refer to the argument that the appellant, if convicted, would have difficulty in securing employment in the future. Ms McCrohan submitted that balancing all relevant factors should have resulted in an exercise of the discretion not to record a conviction.
New evidence
It was sought to place new evidence in the form of two affidavits before the Court. These were affidavits of Ms McCrohan and the appellant. Objection was taken on the grounds that the evidence was not fresh and took the matter no further. It was agreed I would receive the affidavits for the purpose of ruling. It was said in the affidavits that it had not been put to the magistrate that the penalty imposed for the offence might adversely affect the appellant’s current employment. The “fresh” evidence went to that matter. Prior to the imposition of sentence the appellant had been employed at a branch of “Cash Converters” for four or so months. Subsequent to sentence he was asked to obtain what he referred to in his affidavit as “a police clearance check”. In his affidavit, he deposed that he held a position of trust in his current employment and handled large sums of money. He further deposed:
I believe Cash Converters will keep me if no conviction is recorded even though I realise that may show on the police report.
If the Police report shows that this charge was proved but not recorded (sic) Cash Converters will keep me in employment because I am doing such a good job for the company.
The appellant does not say that he believes he will lose his job if the conviction remains. He does not nominate the basis of his asserted belief. No further evidence on this topic has been placed before me. In particular, there is no evidence from persons from Cash Converters as to what, if any, difference a conviction for this offence would make to their preparedness to continue employing the appellant.
Pursuant to s 42(4) Magistrates Court Act 1991 the Court may admit fresh evidence on appeal “if the interests of justice so require”. Ms McCrohan candidly acknowledged the material was not “fresh”, as that term is used in the authorities. But, she suggested I should receive it in the interests of justice.
In my view, it is clear the evidence sought to be presented does not amount to fresh evidence. The evidence was available at the time of submissions. Nothing has changed since that time. Submissions of a general nature were made about the impact the penalty might have on the appellant’s employment prospects in the future. Moreover, I do not think that the affidavit of the appellant provides any admissible evidence as to his current position. Any probative evidence would need to come from Cash Converters. Evidence of the appellant’s belief as to the attitude of his employer is of little, if any, value. It would hardly be surprising that persons charged with the responsibility of employing persons within a business such as Cash Converters would not look favourably upon individuals whose character was marred by having been found guilty of theft in the course of their employment. The fact that the appellant has been asked to provide evidence of his police record suggests that the matter is of importance to those persons. The appellant’s belief as to the attitude of those persons to the question of recording a conviction – without any evidence of the basis for that belief – does not advance the matter. I have determined that the affidavits should not be admitted.
The recording of a conviction
Section 16 of the Criminal Law (Sentencing) Act 1988 sets out the factors relevant to exercise of the discretion not to record a conviction. It provides:
16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
I deal with the matters raised by the section.
Apart from the fact that the appellant was 38 years of age and without prior convictions, it does not appear that there was anything before the magistrate relevant to whether the appellant was unlikely to commit such an offence again. I consider that a decision either way about that was open to the magistrate. The appellant’s antecedents could suffice to qualify under s 16(b)(i). Plainly the offence was not trifling: s 16(b)(ii). I do not consider that evidence that the record of a conviction could jeopardise a person’s employment prospects would be an extenuating circumstance for the purposes of s 16(b)(iii). No doubt, it is a factor in terms of “good reason” for not recording a conviction: s 16. At least in theory then, the magistrate could have found that s 16(a) was met and that the appellant’s circumstances met the requirement in s 16(b)(i). The issue remained whether “good reason” existed.
The public interest in recording convictions in appropriate cases is not to be underestimated. It is important that those who have a proper interest in being apprised of the criminal history of a person are given accurate information. There is also a punitive and deterrent effect in recording a conviction.
There is nothing in the magistrate’s brief remarks on penalty to indicate that he was not alive to the considerations relevant to whether a conviction should be recorded. Moreover, as he said, the offence was a very serious one, committed as it was in the course of the appellant’s employment. I agree with him that this offence was too serious to justify finding “good reason” under the section and that a conviction was warranted. In my view there was no need for the magistrate to detail his thought processes in reaching his decision.
The sentence imposed
As I have said, Ms McCrohan argues that the offence did not warrant the imposition of a sentence of imprisonment. She did not suggest that a lesser period was appropriate; rather that no term should have been imposed at all.
In my view the offence did warrant the imposition of a sentence of imprisonment. The fact that the magistrate did not, expressly, consider lesser alternatives does not undermine this, or suggest any flaw in the sentencing process. The appellant’s prior good character and antecedents and the fact of his good employment record were matters to be weighed in considering the length of the term. Plainly he could receive no credit for any plea of guilty. The fact that he gave evidence to the magistrate denying the charge demonstrates a lack of contrition. On the other hand, the amount of money involved in the offence was small and it was recovered. The offence was isolated.
I have considered whether, notwithstanding counsel’s decision not to argue against the length of the sentence per se, I should reduce the term. Taking into account all the circumstances of the matter, I consider that the term of imprisonment was at the higher end of the available range. However, it cannot be forgotten that the magistrate had the benefit of hearing all the evidence and of assessing the manner of the commission of the offence. The conclusion I have reached is that the term of imprisonment imposed was within the area of the magistrate’s discretion.
Conclusion
As I have said, I decline to receive the new evidence. I dismiss the appeal.