O v Scott McDonald
[2000] TASSC 13
•1 March 2000
[2000] TASSC 13
CITATION: O v Scott McDonald [2000] TASSC 13
PARTIES: O
v
SCOTT McDONALD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 139/1999
DELIVERED ON: 1 March 2000
DELIVERED AT: Hobart
HEARING DATES: 1 March 2000
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Sentencing - Procedure on sentencing - Fact-finding and evidence - Evidence of informal diversionary cautions for offences is not evidence of guilt.
Police Offences Act 1925, ss14B(1), 37(1).
Youth Justice Act 1997, s49(4)(c).
Aust Dig Magistrates [144].
REPRESENTATION:
Counsel:
Appellant: R A Browne
Respondent: F C Neasey
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 13
Number of Paragraphs: 7
Serial No 13/2000
File No LCA139/1999
O
v
SCOTT McDONALD
REASONS FOR JUDGMENT Evans J
(GIVEN ORALLY) 1 MARCH 2000
The applicant appeals against a sentence of two months' imprisonment, with one month suspended on condition that she be of good behaviour for twelve months after her release from prison. This sentence was imposed in the Children's Court upon her plea of guilty to a charge of trespass in breach of the Police Offences Act 1925, s14B(1) and a charge of destroying property in breach of the same Act, s37(1). The only ground of appeal pressed before me is:
"1The Learned Magistrate erred in law in that he treated as prior convictions for the purpose of sentence a number of diversionary cautions given by police officers to the applicant, when such cautions were:-
(a) not proof of nor amounted to prior criminal conduct by her; and
(b) not lawfully receivable by the Court as such."
This ground relates to a document, referred to by the prosecutor, as a list of the applicant's prior matters, which he handed to the learned magistrate in the course of the sentencing hearing. The transcript of the hearing records that what then occurred was "inaudible". For present purposes, I proceed on the assumption that in accordance with the usual practice, the accused was handed a copy of the document and acknowledge the accuracy of its contents. The document details the applicant's prior court convictions as well as recording six occasions on which a police officer gave her a "diversionary caution" in relation to an offence. In the course of sentencing the accused, the learned magistrate made reference to each of the offences detailed in the document, before concluding that the applicant was, "quite out of control and contemptuous of the law and its processes". When referring to the offences listed in the document the learned magistrate correctly observed that the applicant had not been convicted of all of them and went on to say:
"…some of them have been the subject of diversionary cautions but your guilt is not in question in relation to any of them".
Consistent with that observation, it is manifest from what the learned magistrate said when sentencing the applicant, that he concluded she was guilty of each of the offences listed in the document, including those for which she had received a diversionary caution.
Counsel for the applicant submitted that the learned magistrate erred when he proceeded on the basis that the applicant was guilty of offences which had been the subject of a diversionary caution. Counsel for the respondent agrees. He informed the court that the position of the Director of Public Prosecutions in relation to the use of a record of a diversionary caution for sentencing purposes is as follows:
"It is the view of the Director of Public Prosecutions that it is not appropriate for the record of a diversionary procedure to be tendered to a sentencing magistrate/judge for the purpose of informing the court of the offender's prior criminal conduct. This view relates only to diversionary procedures occurring prior to the commencement of the Youth Justice Act 1997 on 1/2/2000.
The Director's position is that only a record of determined proceedings, and of penalty passed with respect thereto, is admissible for such a purpose, the offender (subject to dispute of the record) being bound by the record and the finality of those proceedings.
A record of a diversionary procedure is no more than evidence that an allegation of criminal behaviour has previously been made against the offender and a discretion has been exercised to either not charge the offender, or to not proceed with a charge already laid. (This is no less so where the offender has admitted to police that the relevant offence was committed).
Such material is inadequate, if not inadmissible as evidence of prior criminal conduct."
Whilst counsel for the respondent, having conceded that the learned magistrate erred, does not oppose the appeal, this does not resolve the matter. I should allow the appeal only if satisfied that a ground for doing so has been made out; Godfrey v White (1984) Tas R 232 (NC 9) and D v Strickland (1995) 79 A Crim R 93.
The diversionary cautions detailed in the applicant's record relate to an informal procedure implemented by police, with the laudable objective, in appropriate cases, of diverting young offenders from the criminal justice system. When that course was considered apposite, a police officer issued a caution instead of prosecuting a young offender. Upon the commencement of the Youth Justice Act 1997 on 1 February 2000, that procedure was given a statutory foundation (that Act, Part 2) and a caution arising from the procedure was accorded some statutory recognition, (that Act s49(4)(c)). Prior to the commencement of that Act, the procedure was informal, and cautions arising from the procedure had no statutory standing. Evidence of such a caution established no more than that an allegation referable to an offence had been made against a person who had received a caution referable to the same. In the absence of any statutory provision to embellish what the learned magistrate could make of the admitted fact that the applicant had received diversionary cautions, he was not entitled to conclude that she was guilty of the offences to which the cautions related. No evidence of the applicant's guilt of those offences was given in the course of the sentencing hearing.
As the learned magistrate erred in equating evidence of a caution with evidence of guilt, I am satisfied that ground 1(a) of the appeal has been made out. As argued, the general proposition put in support of ground 1(b) is that evidence of diversionary cautions is not lawfully receivable by the court. I have difficulty in understanding how this could be so. Evidence of a diversionary caution, without more, has little, if any, evidentiary value. However, proof of a caution as a consequence of an admission by an accused of an offence could be relevant and admissible. Evidence of an accused's prior conduct, both good and bad, is invariably given in the course of a sentencing hearing, it being relevant to considerations such as leniency, rehabilitation, recidivism and deterrence. An illustration is R v Carbone (1984) 36 SASR 306 where the Full Court of South Australia treated admitted offences for which there had been no conviction, as operating to impair the good character for which the offender could otherwise have been allowed credit. Whilst I do not accept the general position which underpins ground 1(b), for the reasons I have given in relation to ground 1(a), I am satisfied that the learned magistrate erred in his use of the evidence of the caution.
The appeal is allowed and the sentence quashed.
0
0
2