PEDERSEN v Police

[2009] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

PEDERSEN v POLICE

[2009] SASC 46

Judgment of The Honourable Justice Nyland

27 February 2009

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against sentence - appellant charged with theft of a "Traffic Camera" sign - conviction recorded and fine imposed - appeal against recording of conviction - reasons not given by Magistrate - whether good reason existed for not recording a conviction - appellant aged 18 at time of offence - six days spent in custody - whether Aboriginality of appellant taken into consideration - no prior record.

Held: Sentence manifestly excessive - foolish offence committed by young offender - importance of rehabilitation - good reason to proceed without recording conviction - appeal allowed.

Criminal Law Consolidation Act 1935 s 134(1); Criminal Law (Sentencing) Act 1988 ss 9, 16, referred to.
Budnjo v Police [2003] SASC 14, applied.
Sims v Police [2000] SASC 102, discussed.

PEDERSEN v POLICE
[2009] SASC 46

NYLAND J:

1. This is an appeal against sentence. The appellant was charged on complaint that on 22 August 2008 at Largs Bay in the State of South Australia, he committed theft by taking a ‘Traffic Camera’ sign of a value involving $2,000 or less the property of South Australia Police dishonestly, without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights, contrary to the provisions of s 134(1) Criminal Law Consolidation Act 1935. On 28 November 2008 the appellant pleaded guilty to the charge. A conviction was recorded and he was fined the sum of $200. The appellant does not take issue with the fine imposed, but submits that the learned Magistrate was in error in recording a conviction with respect to the offence.

2. The appellant was born on 5 June 1990 and therefore committed this offence shortly after his 18^th birthday.  The property which is the subject of the charge was an A-frame sign which stated “Safety Cameras Save Lives”.  It was located about 18 metres north of the location of a speed camera.  It was valued at less than $100.  A SAPOL traffic camera operator saw a motor vehicle pass his location and noticed the person seated in the front passenger seat hanging the sign out of his window.  The car was later located and the sign was found hidden in the boot of the car.  The appellant initially denied having the sign in his possession but once confronted with it stated that he was given the sign by a friend, but refused to reveal his friend’s name. 

3. At the hearing in the Magistrates Court, the appellant was represented by Mr Truscott, a legal practitioner with the Aboriginal Legal Rights Movement.  He told the court that the appellant accepted the allegations but described the theft as a youthful prank.  He also submitted that the theft of the sign would be viewed more seriously if it had been a Stop sign, or a similar sign conveying important information to motorists.  This sign, however, merely reminded drivers to obey the posted speed limits, which is the obligation on all drivers, regardless of being reminded about them.  He asked the court to take into account that the sign had been recovered. 

4. Mr Truscott asked the Magistrate to proceed without imposing a conviction. He referred to the personal circumstances of the appellant, namely that he was working as a boilermaker’s apprentice and worked from 7.30 a.m. to 4.00 p.m. every weekday and would often work overtime until 5.00 p.m. The Magistrate was provided with an undated reference from a family friend and high school teacher, which indicated that the appellant was family-minded and loyal to his friends, although sometimes easily influenced by them. Mr Truscott pointed out that the appellant had no prior convictions nor any prior appearances before a court. He described the offence as an error of judgment which would not be repeated. He submitted that the appellant was a young man with potential employment opportunities which would be damaged by a conviction for a dishonesty offence. Taking all those matters into account, he submitted that the matter could be dealt with pursuant to s 16 of the Criminal Law Sentencing Act 1988 (Sentencing Act).

5. The police prosecutor, however, took issue with a number of submissions made on behalf of the appellant.  He submitted (a) the appellant initially denied possession of the speed camera sign.  He did not return it to police voluntarily and the sign had been secreted under carpet in the boot floor and was found by a police search; (b) if the appellant had seen the offence as no more than a prank, he would have volunteered it to the police immediately with an appropriate explanation, (c) it was not a trivial example of this type of offending, given the sign was used to warn and make motorists aware of travelling at an excessive speed.  Therefore, absent the sign, there was one less warning to the public; (d) the appellant was described by the police as being “rude and belligerent” in their dealings with him.  This did not indicate that the appellant was genuinely contrite; (e) in all of the circumstances, any penalty imposed for this offence should include a conviction being recorded.  It was not trivial or unremarkable in nature.  No aspect of the offending set it apart from other offending of its type so as to warrant leniency from the court.

6. The Magistrate did not give any reasons when imposing penalty, but, by implication, rejected the submissions made on behalf of the appellant that the matter should be dealt with by not recording a conviction. Section 9 Sentencing Act provides, however, that:

   1.     The court must upon sentencing the defendant who is present in court:

   (a)     state his reasons for imposing the sentence, and

   (b)     cause an explanation of legal effect and obligations of the sentence and where appropriate of the consequences of non-compliance with it to be given in simple language to the defendant.

   2.The validity of the sentence is not affected by non-compliance or insufficient compliance with the section.

7. Although the failure to give reasons does not affect the validity of a sentence and does not necessarily amount to an error of law, this court on innumerable occasions has emphasised the importance of reasons.  On the hearing of the appeal, counsel for the respondent conceded that it would have been desirable for the Magistrate to have given reasons for the sentence to provide greater clarity to the appellant, to the community and to this court but submitted that this was a case in which there was really no need for reasons.  The Magistrate heard submissions in favour of the exercise of discretion pursuant to s 16, but had declined to exercise that discretion.  Counsel referred to the decision of Sims v Police, in which Bleby J observed[1]:

   By ruling as the Magistrate did in this case, he was saying he was unable to identify any single factor or combination of factors that would enable him to form the necessary opinion.  It is not incumbent upon him to identify other factors which had not enabled him to form the necessary opinion.

   [1] [2000] SASC 102 at para 7.

8. Section 16 Sentencing Act 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.

9. In this case, there were a number of matters relating to the personal circumstances of the appellant which enlivened the discretion to proceed without conviction.  The appellant had no prior record.  He had only just turned 18.  He pleaded guilty at an early date.  He is now only aged 19 and in a stable relationship.  He has considerable family support and close family relationships.  It is also of some significance that the appellant spent approximately six days in custody with respect to this matter but it is impossible to determine whether the Magistrate was aware of that or, if he was, whether he took that into account. 

10. The submissions made by the Police Prosecutor suggest that the focus at the sentence hearing was on the provisions of s 16(b)(ii) Sentencing Act, i.e. that this was not a trifling offence. That, however, was accepted by the appellant. In asking the court not to record a conviction counsel for the appellant relied on s 16(b)(i) Sentencing Act, i.e. the character, antecedents and age of the appellant as providing good reason for not recording a conviction. It is not however possible to determine whether the Magistrate gave sufficient weight to that aspect of the matter.

11. There is a further problem created by the lack of reasons.  In the outline of argument filed on the hearing of the appeal, counsel for the appellant referred to the Aboriginality of the appellant and the need to take into account the deprived nature and lack of future job prospects for young Aboriginal offenders.  Counsel for the respondent pointed out, however, that the Aboriginality of the appellant was not put to the learned Magistrate as part of the submissions in the Magistrates Court.  He therefore objected to this court having regard to that matter.  He further said he would oppose any application to place fresh evidence as to that matter before this court, as it was information which would have been readily available at the sentence hearing. 

12. Subsequent to the appeal hearing the solicitor for the appellant filed an affidavit deposing to the Aboriginality of the appellant.  He does not however say whether that information was before the learned Magistrate at the time of sentence nor, if it was not, why it was overlooked.  Counsel in the Magistrates Court may have assumed that the fact that the appellant was represented by a lawyer from the Aboriginal Legal Rights Movement alerted the Magistrate to that aspect of the matter and may explain why no specific submission was put to the Magistrate about it, despite it being highly relevant to the exercise of discretion.  Due to the lack of reasons, however, it is impossible to determine whether the Aboriginality of the appellant was known to the Magistrate or whether it was taken into account with respect to the penalty imposed.  I consider that it is unnecessary to further explore this issue however as I believe that this appeal can be resolved without having regard to that aspect of the matter. 

13. In my opinion, the recording of a conviction together with the imposition of a $200 fine on a first offender who had spent six days in custody with respect to this offence is a manifestly excessive sentence.  The absence of reasons precludes me from finding out why the Magistrate thought that such a severe sentence was warranted.  I therefore propose to set aside the sentence imposed by the learned Magistrate and exercise the sentencing discretion afresh. 

14. In Budnjo v Police[2], Gray J discussed to the issue of rehabilitation with respect to young people and said at [19]:

    When young people are involved in criminal activity the importance of rehabilitation has been repeatedly recognised by the courts.  There is no indication that the magistrate in the present case considered the need for the appellant's rehabilitation.  The magistrate's reasons are silent on this important issue.  It was erroneous to proceed in the absence of a consideration of how the court could best facilitate the appellant's rehabilitation.  It appears that this was a one off excursion into criminal activity and there was no evidence that his behaviour would be repeated.  Counsel for the appellant submitted to the magistrate and again on appeal that the appellant was both shocked and embarrassed by his behaviour and that he now understands the consequences of alcohol induced conduct.  The community is best protected against further offending by the appellant's rehabilitation.

    [2] [2003] SASC 14.

15. In my opinion, those remarks are of equal application to the present case. This was a foolish offence committed by a young person of prior good character. The fact that the appellant spent six days in custody with respect to this crime should have brought home to him the seriousness of his actions. The personal circumstances of the appellant augur well for his future prospects and I believe that a merciful approach to sentence will promote his rehabilitation. In the circumstances, I consider that it is appropriate to rely on the provision of ss 16(a) and 16(b)(i) Sentencing Act and find there is good reason to release the appellant without recording a conviction. The fine imposed by the Magistrate will however be allowed to stand. The appeal is therefore allowed, the conviction set aside and in lieu thereof the appellant will be released without conviction.