Peters v Police - [2004] SASC 284

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PETERS v POLICE
Judgment of The Honourable Justice Nyland
16 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant appeared unrepresented in Magistrates Court - pleaded guilty to offences charged on five different files - convicted and sentenced by magistrate - no transcript of hearing - no sentencing remarks - not possible to review exercise of sentencing discretion - error of law - appeal allowed.
Criminal Law (Sentencing) Act 1988, s 10, referred to.
Cooling v Steel [1971] 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279; Hodgson v Police [2002] SASC 35 (unreported); Cross v Police [2001] SASC 47 (unreported); Szewczuk v Police [2001] SASC 223 (unreported), applied.

PETERS v POLICE
[2004] SASC 284
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against sentence. On 21 May 2004, the appellant appeared before an acting stipendiary magistrate in the Adelaide Magistrates Court with respect to a series of offences charged on five different files. Those offences included a number of driving offences, as well as charges of assault and hinder police. The appellant was also charged with breaching a bond. The appellant was not represented. The appellant had earlier pleaded guilty to the charged offences and had admitted the breach of bond. The learned magistrate imposed a total sentence of two years imprisonment with respect to the charged offences, together with a fine of $500 and disqualified the appellant from driving for eight months forthwith. The learned magistrate further ordered the revocation of the suspension of the sentence of 12 months imprisonment and directed that it be served at the end of the sentence imposed with respect to the other matters. This left the appellant with a head sentence of three years. The learned magistrate then set a non-parole period of 18 months. He directed that the sentence and the non-parole period commence from 21 May 2004, that is, the date upon which sentence was imposed.
The appellant has appealed against that sentence on the ground that it was manifestly excessive.
The appellant also complained that the learned sentencing magistrate erred by failing to ensure that the appellant was advised of his rights upon pleading guilty. Most significantly the appellant has appealed on the ground that the learned sentencing magistrate erred by failing to give reasons for sentence and also failed to take into account time already served by the appellant.
It appears that prior to the date on which sentence was imposed, the appellant had been legally represented in all court appearances in relation to these matters. It was during this period that the appellant entered his pleas of guilty in relation to the charged offences as well as admitting the breach of bond. On 21 May 2004, however, contrary to advice received from his solicitor to remand matters for further instructions and negotiations, the appellant insisted that the matter proceed that day. As a result, the appellant’s solicitor withdrew from the file. The appellant then appeared before the learned sentencing magistrate and told him that he wished to plead guilty to all outstanding charges and finalise matters.
The steps to be followed by a court when taking a plea from an unrepresented defendant are set out by Wells J in Cooling v Steel[1], helpfully paraphrased by Sangster J in Ivanoff v Linnane[2] as follows (relevantly, at 282-3):
“(i)Ensuring before a plea is taken that the defendant is told, briefly and simply, what he is charged with …
(ii)Making the defendant appreciate that that plea is a matter for his own independent decision, that he is entitled to legal advice or representation, and to a reasonable adjournment to seek legal advice or representation …
(iii)If the question of bail arises, making the defendant clearly aware of what bail is, that he can apply for bail, what matters a court takes into account, and that he can make representations …
(iv)If the case is to be proceeded with the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has power to disqualify from holding or obtaining a driving licence, or order compensation, or direct forfeiture of property, or order imprisonment.
(v)On a plea of guilty the defendant should have it made clear that he may put matters in mitigation by statement or on oath (especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material.
(vi)On a plea of guilty, before the prosecutor places the facts before the court the defendant should be informed that he is entitled to dispute or comment on the facts about to be alleged (including previous convictions).
(vii)If facts are disputed, the defendant should be given the opportunity to support his version by sworn evidence and/or calling witnesses, or (if appropriate) consideration should be given to treating the defendant’s contention as to the facts as a plea of ‘not guilty’.”
[1] (1971) 2 SASR 249 at 250-1
[2] (1979) 20 SASR 279
Wells J concluded in Cooling v Steel (at 251):
“In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
In this case, apart from the limited recollection of the appellant set out in his affidavit sworn on 11 August 2004, it is not possible to say whether the learned sentencing magistrate properly appraised the appellant of his rights as there is no transcript of the hearing.
In addition, the learned magistrate does not appear to have given any reasons for the sentence imposed. Section 9(1) of the Criminal Law (Sentencing) Act 1988 (“Sentencing Act”), however, requires the court upon sentencing a defendant who is present in court to state reasons for imposing that sentence, together with an explanation of the legal effect and obligations thereof and where appropriate, the consequences of non-compliance, although s 9(2) provides that the validity of the sentence is not affected by non-compliance or insufficient compliance with that section. These provisions were considered by Doyle CJ in Hodgson v Police[3]. He said [paras 8, 9]:
“For instance, in a simple case in which there is no dispute about the facts, the absence of reasons might not embarrass an appellate court in any way. It might be that in such a case a failure to give reasons is not an error of law and that the sentence should not be set aside unless it is excessive.
The suggestion that reasons must always be given appears to me to have been made in cases in which, generally, a custodial sentence was in issue or, alternatively, there was a factual dispute to be resolved.”
[3] [2002] SASC 35 (unreported)
In this case, the learned magistrate was imposing a custodial sentence. Section 10 of the Sentencing Act sets out the matters to which a sentencing court should have regard in determining sentence such as, in this case, the personal background and diminished responsibility of the appellant. There is no information available as to those matters nor what, if any, discount was given to the appellant on account of his pleas of guilty, nor whether the learned sentencing magistrate took into account the appellant’s prospects of rehabilitation. There is no dispute that the appellant was in custody from 21 August 2003 until 29 October 2003, being a period of 60 days. He was then in custody from 23 February 2004 until the date upon which sentence was imposed. That was a further 89 days, making a total period in custody of about five months. In the absence of reasons, however, it is not possible to ascertain whether the magistrate had regard to the whole or any part of the time already served by the appellant prior to the date of sentence, nor the reason why the learned sentencing magistrate decided not to backdate the sentence and non-parole period to 23 February 2004, which was the last date upon which the appellant was taken into custody.
In Cross v Police[4], Olsson J said:
“It is important not to be unduly critical and wise after the event in relation to busy magistrates who have to grapple with very lengthy lists on a day to day basis. However, I am bound to comment that the remarks as to penalty in this case were, with respect, so inadequate that it is really impossible to discern the basis upon which the learned magistrate arrived at the sentence which he imposed.
There is no indication of the manner and extent to which he took into account the most unusual personal background and diminished level of responsibility of the appellant, or the quite unusual circumstances leading to the commission of the offence. He made no reference to the lengthy report of Mr Balfour, which had been placed before him. Nor is there even any indication that due allowance has been made for the timely plea of guilty entered by the appellant. …
It seems to me that, if a substantial custodial sentence is in contemplation, even if it is to be suspended, then it is imperative that a sentencing magistrate express, at least in note form, sufficiently adequate reasons to disclose how the sentence is arrived at and what factors have been taken into account so that, if an appeal is prosecuted, this court can properly review what has occurred.
In the instant case, such a process of review is not possible by reason of the total absence of meaningful reasons.
As to this the reasoning of Gray J (concurred in by myself and Wicks J) in Papps v Police (2000) 209 LSJS 407 is directly apposite. In the instant case the failure to express adequate reasons plainly constituted an error of law.”
[4] [2001] SASC 47 (unreported)
Similarly, in Szewczuk v Police[5], Lander J said:
“The reasons perform at least two functions. First they explain to the person upon whom the sentence is being imposed the reasons why the particular sentence has been selected in the exercise of the sentencing discretion. Secondly the reasons allow those advising the offender and, if necessary, an appeal court to review the sentencing discretion. For both those reasons the sentencing remarks must be transparent so that the reasoning process which underlies the exercise of the sentencing discretion can be understood and reviewed.
The Magistrate should record the basic facts upon which the sentence is to be passed. The sentencing remarks should indicate the Court’s view of the gravity of the criminality. They should indicate those matters personal to the offender which have been weighed in the exercise of the sentencing discretion. If the sentence is imposed on an offender’s plea of guilty, then the sentencing remarks should indicate that that plea has or has not been taken into account and has been viewed or not viewed as some evidence of contrition or remorse. The sentencing remarks should also indicate, if the plea has been accepted as evidence of contrition and remorse, what discount has been given for that plea. Where the person is to be sentenced to imprisonment, whether immediate or suspended, the sentencing remarks should indicate why it is that imprisonment has been imposed; s 11 Criminal Law (Sentencing) Act. Where a sentence of imprisonment is to be served immediately the reasons should, of course, indicate why the sentence cannot be suspended.”
[5] [2001] SASC 223 (unreported)
Lander J considered that it was an error of law to sentence a person to a term of imprisonment without giving reasons for that sentence. He went on to say [para 43]:
“The obligation to explain clearly why it is that a sentence of imprisonment has been imposed is even greater when the offender is unrepresented.”
In this case, it is not possible to discern what matters were taken into account by the learned sentencing magistrate, nor the weight given to those matters which he did take into account. In those circumstances it is not possible for this court to review the exercise of the sentencing discretion. That, in my opinion, demonstrates an error of law which requires this court to intervene. That was conceded by the respondent on the hearing of the appeal and for that reason I made the order that the appeal be allowed and the sentence imposed be set aside. The matter was therefore remitted to the Magistrates Court for the appellant to be sentenced by a different magistrate.