Paulson v Police No. Sccrm-98-926 Judgment No. S6947

PAULSON v POLICE
[1998] SASC 6947

Magistrates Appeal: Criminal

PERRY J. The appellant brings two appeals from sentences imposed upon him in the Magistrates Court sitting at Berri. In one of the matters, he also appeals against conviction.
On 7 July 1998, the appellant was sentenced following his conviction on two separate complaints. The first complaint alleged two counts, namely, theft of a photocopying machine and other office equipment to the value of $6,845 contrary to s131 of the Criminal Law Consolidation Act 1935, and being unlawfully on the premises from which the equipment was stolen contrary to s17 of the Summary Offences Act 1953. Those offences were alleged to have occurred on 6 February 1997 at Berri.
The second complaint alleged three counts of obtaining money by passing valueless cheques, contrary to s39 of the Summary Offences Act 1953. The amounts involved were respectively $300, $320 and $500, the first two offences having been committed between 1 and 20 November 1996, and the third between 1 and 10 February 1997.
On the three counts of passing valueless cheques, the learned sentencing Magistrate imposed a single penalty of three months imprisonment. On the charges of larceny and being unlawfully on premises he imposed a separate single penalty of eight months imprisonment, cumulative upon the first sentence, giving an overall head sentence of eleven months imprisonment. This being less than twelve months, no non-parole period was fixed.[1]
[1] See s32(5) of the Criminal Law (Sentencing) Act 1988.
In his notices of appeal relating to the sentences imposed upon each complaint, the appellant complains that in each case the sentence was manifestly excessive.
By leave given by me on the hearing of the appeals, the notice of appeal relating to the sentence imposed on the charges of passing valueless cheques was amended to include a further ground, namely:
“That the conviction should be set aside by reason of the lack of a formal plea of guilty to the cheque counts having been made.”
I will deal with that ground of appeal first.

Appeal against conviction

The appellant is a 36 year old man, not unversed in Magistrates Court proceedings on the criminal side. In 1981, he was convicted in Holden Hill Magistrates Court of driving with excess blood alcohol and driving without due care, upon which charges he was convicted and fined, with a six weeks licence disqualification.
In 1986, in the Elizabeth Magistrates Court he was convicted of three counts of embezzlement, upon which he was sentenced to imprisonment for three months on each count, suspended upon his entry into a twelve-month good behaviour bond.
In 1993, he appeared in the Magistrates Court sitting at Berri when he was convicted of a charge of larceny as a bailee for which he was sentenced to imprisonment for four months. Once again, the sentence was suspended upon his entry into a bond to be a good behaviour for three years, which was coupled with a community service order.
In July 1996, the appellant was convicted in the Magistrates Court sitting at Berri of driving with excess blood alcohol and driving without due care. On those charges he was fined and his licence was suspended for ten months.
On 25 June 1997, he appeared in the Berri Magistrates Court on a charge of driving whilst disqualified. On that charge, on 24 November 1997 he was sentenced to 21 days imprisonment suspended upon entering a bond to be a good behaviour for a year.
Before the last mentioned penalty was imposed, namely, on 21 August 1997, the first of the two complaints now in question, namely, the complaint alleging theft and being unlawfully on premises, was issued out of the Magistrates Court. The first of many appearances upon that complaint took place on 8 September 1997. The appellant was represented by a solicitor and the matter was adjourned for a fortnight. Following a further adjournment, on 24 November 1997, which as I have indicated was the occasion upon which he was sentenced upon the charge of driving whilst disqualified, the appellant pleaded guilty to both counts, that is, to larceny and being unlawfully on premises.
The hearing of the complaint relating to those two offences was further adjourned to enable discussions to take place between his solicitors and the prosecution as to the facts upon which he was to be sentenced. Eventually the matter was set down for a disputed facts hearing to be heard on 27 May 1998.
In the meantime, on 19 November 1997, the complaint was issued out of the Magistrates Court alleging the three counts of passing valueless cheques. That also was called on for hearing on 24 November 1997, before the same Magistrate who was dealing with the other complaint. Both matters were then listed together on a number of dates until they were finally disposed of on 7 July 1998. That date was fixed on 27 May 1998 when the disputed facts hearing did not proceed, agreement by then having been reached between the appellant’s solicitor and the prosecution as to that aspect of the matter. On 27 May 1998, an updated pre-sentence report was ordered by the learned sentencing magistrate.
On that occasion, as he was on every other occasion both matters were listed, the appellant was represented by a solicitor or by counsel. The back sheet to the complaint alleging larceny and being unlawfully on premises clearly records a plea of guilty entered to both counts on 27 October 1997. But the endorsements on the back sheet of the complaint relating to the counts of passing valueless cheques, which as I have indicated, was called on together with the other complaint as from 24 November 1997, does not expressly record that the appellant pleaded guilty to the three counts. However, there is an endorsement dated 7 July 1998 signed by the magistrate, no doubt made at the hearing on that date, to the effect that “facts and prior convictions” were admitted, “submissions made” and that the appellant was “convicted and imprisoned 3 months forthwith”. [I have expanded slightly on the magistrate’s abbreviations as they appear in the endorsement.]
It is the magistrate’s failure formally to record the entry of a plea of guilty with respect to the three counts of passing valueless cheques which gives rise to the appellant’s attempt on appeal to set aside the conviction recorded with respect to those counts.
There is no doubt that good practice, indeed, regular practice requires a magistrate to make a note, usually in the form of an endorsement on the back sheet of the complaint, of important steps taken with respect to the hearing of the complaint. Furthermore, if the court enters a conviction or makes an order against a defendant, pursuant to s70 of the Summary Procedure Act 1921, the court is under an obligation to make “a minute or memorandum of the conviction or order”. These days, such a minute or memorandum is commonly made not only by manual endorsement on the back sheet of the complaint, but also by the subsequent making of a computer record of the endorsement.
Be that as it may, while s70 does not extend to steps other than convictions or orders, as I have said, a magistrate constituting a Magistrates Court, or his or her clerk, should make a note of the plea entered to any complaint or summons. Indeed this is the invariable practice of magistrates.
Here, although such a note does not appear on the complaint with respect to the passing of valueless cheques counts, there is other evidence before me that a plea of guilty was in fact made to the complaint with respect to those counts, or that the prosecutor and counsel for the appellant gave an assurance to the magistrate that such a plea had been entered.
Amongst the papers remitted to this Court pursuant to SCR R 96C.05, is a certified copy of the magistrate’s notes dated Tuesday 7 July 1998, the date upon which the convictions on both counts were recorded and the sentences now under review imposed. Those notes, which relate to both complaints, record in part:
“PAULSON -      1.     6/2/97 Larceny ($6845)
2.     6/2/97 Unlawfully on Premises
1.     1/11/96 - 20/11/96     Obtain $300 valueless cheque
2.               ditto                   Obtain $320 valueless cheque
3.               ditto                   Obtain $500 valueless cheque
GIBBONS
PLEADS GUILTY”
As I have already explained, on the complaint relating to the larceny and unlawfully on premises counts, the appellant’s plea of guilty was expressly recorded by the learned magistrate in an endorsement on the file relating to the hearing conducted on 27 October 1997. It seems likely from the magistrate’s notes of 7 July 1998 that he must have raised the question of the plea to both complaints again on that occasion.
The magistrate’s notes are to be read together with an affidavit put before me on the hearing of the appeal, sworn by James Gibbons, counsel for the appellant, who appeared on 7 July 1998, when he advanced submissions for leniency on both complaints. In his affidavit, after referring to what transpired on the appearance before the learned sentencing magistrate on 27 May 1998, the detail of which largely relates to the larceny and unlawfully on premises charges and does not throw any light upon the course of events with respect to the other charges, he then deals with the events of 7 July 1998. Mr Gibbons deposes to the following:
“5..... On the 7th day of July 1998 I again appeared on behalf of Mr Paulson. The Police Prosecutor was Caroline Bristow. I checked that she had a copy of the agreed facts and she confirmed that she had.
6.Mr Liddy SM inquired whether pleas had been entered to all matters and the Prosecution stated that they had. This was also my understanding and I did not take the point as my instructions were that my client was pleading guilty to all charges. Mr Liddy SM accepted that guilty pleas had been entered to all counts.”
An affidavit sworn by the prosecutor, Ms Caroline Bristow reads in part:
“2..... On 27 May 1998, I appeared before Mr Liddy SM, a Magistrate sitting as a Magistrates Court at Berri in the State of South Australia to prosecute the appellant on a number of charges. On this occasion a charge of larceny and a charge of unlawfully on premises had been listed for a dispute of facts hearing. In addition there were six other charges against the appellant which had been listed for mention on that day. These charges involved three counts of passing valueless cheques and three counts of false pretences.
3.The charges did not proceed as a dispute of facts hearing on the aforementioned occasion. This is because agreement was reached between myself and Mr Gibbons on behalf of the appellant, prior to the matter being called on in Court, as to what submissions the defendant was going to submit via a document entitled “Outline of Submissions on circumstances of offence - Paulson”. This document is marked as exhibit “CB-2” in my affidavit sworn on 13 August 1998. This document was never proposed by prosecution to form a statement of agreed facts in the classic sense of this expression, rather it was intended to be used as a statement of the defence position (as agreed by the prosecution). This document was subsequently read to the Court by Mr Gibbons as part of defence submissions on 7 July 1998.
4...... On 27 May 1998, I recall pleas being entered to the three counts of having passed valueless cheques. I am not sure whether the pleas were entered through Mr Gibbons on behalf of his client, or by the appellant himself. On the basis of the pleas of guilty being entered to these charges, I made application to the Court withdraw (sic) the remaining three counts of false pretences. The Court made an order withdrawing the complaint. Annexed hereto and marked with the letter “CB-1” is a certified copy of the complaint and file endorsements showing the withdrawal of the complaint.
5.I also recall on this occasion that Mr Gibbons made application that an addendum pre-sentencing report be prepared. His Honour Mr Liddy SM proceeded to order the addendum pre-sentence report and His Honour asked that the report make particular reference to how the defendant has been handling his finances as regards his creditors.
6...... His Honour then adjourned the remaining proceedings o 7 July 1998 for the purposes of sentencing the appellant.”
In his affidavit in support of the appeal, the appellant states, inter alia, as follows:
“7..... There were many adjournments of the matters before the court. In relation to the matters which are now comprised in file MCBER-97-2463, the allegations were in dispute. I understood from Ms Dixon that she was having difficulty in communicating in any meaningful sense with the prosecution which may have contributed to the number of adjournments. Eventually a dispute of facts hearing was set to try and resolve the situation. I understand that Ms Dixon briefed Mr Gibbons to attend on the dispute of facts hearing. I also understand that further discussions may have been held which resolved the dispute of facts situation. The police were also interested in a large number of cheque transactions but only three were charged. I was hesitant about acknowledging guilt for these cheque matters but I received certain advice as to possible outcomes and/or the likely penalty and seeing there was a deal with the prosecution I decided I would plead guilty.
8.On 7th July 1998 all matters were before Mr Liddy SM in the Berri Magistrates Court. He mentioned that there did not appear to be pleas to the cheque matters. The prosecutor said she thought they had been entered about a month ago. Mr Gibbons indicated that he thought that may have been so. I was trying to attract Mr Gibbons’ attention but was not able to do so. The matters proceeded from there.
9...... I say the fact of the matter is that I did not enter guilty pleas to the cheque matters now comprised in file MCBER-97-2961 on 7th July 1998 or on any earlier occasion. It is also the case that Mr Gibbons did not on 7th July 1998 or earlier, enter pleas on my behalf. I have been dealt with on the cheque matters without the formality of pleas having been entered.
10.I ask the Court to quash the convictions recorded on file MCBER-97-2961. I believe I have a defence to the charges in that I believed that sufficient funds existed to meet the cheques and that I had no intent to defraud.”
It will be seen that the appellant admits that with respect to the passing valueless cheque counts “... I decided I would plead guilty”.
The course of events is only explicable on the basis that the appellant had made a decision to plead guilty to both complaints now in question, and had instructed his solicitor and counsel accordingly. The course of events in the Magistrates Court would have taken a different turn altogether if he had pleaded not guilty to the passing valueless cheque counts. Instead of proceeding together with the hearing of the other complaint, upon which a plea of guilty had unquestionably been entered, the passing valueless cheque counts, if the subject of a plea of not guilty, would have been adjourned to a date upon which a contested hearing could have been conducted. There would also have been consideration given to the usual pre-trial directions as on a contested hearing.[2] None of those things happened. The course of events is only consistent with a belief and understanding on the part of the Court and the representatives of both parties before the Court that both matters were to be dealt with on the basis of a plea of guilty.
[2] See “Pre-Trial Preparation”, Magistrates Court Rules 1992 v 26.
In those circumstances, there is no question but that unless set aside, the formal entry of a conviction upon the passing valueless cheque counts meant that those charges merged in the conviction. From that moment onwards, a plea of autre-fois convict was available to the appellant with respect to those charges. [3] Furthermore, the conviction stands unless set aside.
[3] Maxwell v R (1996) 135 ALR 1.
No doubt, if there has been an irregularity on the way to recording a conviction, of a kind which would make it unfair for the conviction to stand, the conviction becomes voidable in the sense that the court has a discretion to set it aside. It follows that if a plea of guilty was either not entered, or if entered, was entered by mistake in circumstances in which an accused person intended to contest a charge, any conviction might be set aside.
Here, it is the appellant who seeks to have the relevant conviction set aside. The onus is therefore upon the appellant to satisfy this Court that the entry of the conviction was irregular, and that it was entered in circumstances which would render it unjust to allow it to stand.
I do not think, however, that it is a sufficient ground to set aside an conviction , standing alone, that it was not preceded by the formal entry of a plea of guilty. That is undoubtedly a circumstance which goes to the exercise of the discretion. But here, it is plain that the defendant intended to plead guilty, allowed the court to obtain the usual material as an aid to sentencing in the form of an updated pre-sentence report, admitted prior convictions asserted and facts alleged by the prosecution, made submissions for leniency, and then stood by while the court went on to pronounce sentence. In those circumstances, it is inconceivable that the court would allow any doubt as to whether or not a plea of guilty was formally recorded, to provide a proper basis for setting aside the conviction.
In any event, on the material before me, I think it likely that a plea of guilty was entered, but that the learned sentencing magistrate failed to make a formal record of it, except in his notes of 7 July 1998. In that respect I have regard to the invariable practice of prosecutors not to withdraw a charge when its withdrawal is conditional upon the entry of a plea of guilty to other charges, until the plea has been entered. The withdrawal by the prosecution of three counts of false pretences on 27 May 1998 is unlikely to have been effected, short of a clear intimation of a plea of guilty to the charges which were to be proceeded with.
Even if I was to be wrong in that, as I have indicated, it is for the appellant to satisfy this Court that there are circumstances justifying the exercise of the discretion to set aside the conviction. For the reasons which I have given, the appellant has manifestly failed to satisfy that onus.
Everything points to a situation in which the appellant, hopeful that he would not receive a custodial sentence of imprisonment, now seeks to re-open the matter upon his disappointment on being sentenced to a custodial term.
This Court should be astute to avoid manipulative attempts to re-argue matters upon a basis other than that which was pursued in the court below.
The appeal against conviction must be dismissed.

Appeals against sentence

The police prosecutor, Ms Bristow, has put forward the usual affidavit summarising the facts as put by her to the learned sentencing magistrate during the course of her submissions on sentence.
As to the passing valueless cheque offences, she explained to the learned sentencing magistrate that the victim with respect to the first two counts was a 19 year old man who worked at the time for a company conducted by the appellant under the trading name Modtech, at Berri. The company was involved in sales of computers.
The appellant gave the victim two cheques suggesting that he deposit them in his own account with the credit union, withdraw a corresponding amount of cash from the ATM, and give the cash to the appellant. The victim carried out these instructions and gave the money to the appellant after depositing the cheques. Later the cheques were dishonoured on presentation.
As to the third count of passing a valueless cheque, this involved a transaction involving an elderly pensioner who had the misfortune to order a computer and associated hardware from Modtech at an agreed price of in excess of $3,000. The appellant requested a deposit of $1,500 which was duly paid. On the appellant’s failure to deliver the goods which had been ordered, the victim cancelled the transaction and requested a refund of his deposit. At the same time the victim complained to the Office of Consumer Affairs. An approach from that Office to the defendant resulted in the appellant agreeing to refund the deposit in three instalments of $500.

The very first instalment paid over by the appellant in the form of a cheque, was not met on presentation.
In relation to the other matters, these involved business premises in the same street as the street in which Modtech’s premises were situated. The appellant and another employee of Modtech, Rowan Cresp, entered the premises of Western Properties through an unlocked rear door and stole the items in question. That followed some preliminary discussions between the appellant and Cresp, and cannot be regarded as other than a deliberately planned offence. The items were placed in the back of Cresp’s mother’s car and conveyed from there to a shed at the appellant’s home address at Barmera where they were concealed. When later the appellant became aware of police investigations directed towards him, he and Cresp made up a story as to how the property came to be in their possession. Elements of that story included the false suggestion that the word processor had been delivered to the appellant for repairs, and the photocopier accepted as a trade-in on a computer. False entries were made in the books of Modtech in an endeavour to give credence to the fabrication.
Upon his arrest, the appellant refused to answer any questions. But the true story appears to have emerged in the course of police interviews with Cresp.
I have already referred to the appellant’s history of prior offending.
The learned sentencing magistrate had the benefit of a Community Corrections assessment report, together with a pre-sentence report. It was put to him that the appellant had, to his credit, paid off a substantial number of trade debts, and that he had obtained a good position with Coca Cola Amatil in their computer division. Letters were put before the learned sentencing magistrate from Crusade Centre Incorporated, being a church with which the appellant has from time to time been associated, and Coca Cola Amatil.
In the course of his remarks made when sentencing the appellant, the learned sentencing magistrate observed:
“I take all those matters put on your behalf by Mr Gibbons into account in imposing penalty on you. You are before the court for not one but five offences committed on several occasions over a three-month period. One involved unlawful entry on to premises and the theft of property of substantial value.
You have twice previously been given leniency for offences of dishonesty on both occasions by way of a suspended sentence. The last suspended sentence bond had expired only the month prior to the commission of the valueless cheque offences. It is evident that those sentences have not deterred you from re-offending and I consider that a further suspended sentence would be inadequate punishment to you, a doubtful deterrent to you and no deterrent whatsoever to other similarly inclined. I regard immediate imprisonment the only appropriate penalty.
In fixing the term I give you credit for the efforts made at restitution and for your pleas of guilty and reduce the term accordingly.”
In my opinion, and notwithstanding the matters put in mitigation on behalf of the appellant both before the learned sentencing magistrate and before this Court, the appellant has not demonstrated that the sentence, and in particular the failure by the learned sentencing magistrate to suspend the term of imprisonment which he imposed, was manifestly excessive.
This Court should be slow to interfere with the exercise by experienced magistrates of the discretion whether or not to suspend a sentence of imprisonment. Before this Court is justified in interfering, it is incumbent upon the appellant to demonstrate that the exercise of the discretion miscarried by reference to some misapprehension of fact or error of law or other appealable error. The appellant has failed to point to any ground upon which it would be proper for this Court to interfere with the sentences imposed upon him.
The appeals against sentence must be dismissed.
In the result, the order as to both appeals is: appeals dismissed.

JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

See s32(5) of the Criminal Law (Sentencing) Act 1988.
See “Pre-Trial Preparation”, Magistrates Court Rules 1992 v 26.
Maxwell v R (1996) 135 ALR 1.

[1998] SASC 6947

16 November 1998