Playford v Police

Case [2017] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

PLAYFORD v POLICE

[2017] SASC 26

Judgment of The Honourable Justice Vanstone

9 March 2017

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

Appeal against sentence and application to amend notice of appeal to appeal against conviction. Where applicant pleaded guilty in the Magistrates Court to managing and keeping a brothel, dishonestly dealing with property and assisting in the management of a brothel. Where Magistrate recorded a conviction for all three counts. Whether Magistrate erred in declining to exercise her discretion not to record convictions. Whether the admitted facts of count three constitute the offence charged.

Held: The appeal is dismissed. The admitted facts of count 3 amounted to the offence. The approach to imposition of penalty taken by the Magistrate was not attended by error. It was within the Magistrate’s discretion to decline not to record convictions.

Summary Offences Act 1953 (SA) s 28; Criminal Law Consolidation Act 1935 (SA) s 267; Criminal Law (Sentencing) Act 1988 (SA)  s 16, s 39, referred to.
MacGregor v Police (1995) 66 SASR 269; McDermott v Police [2014] SASC 175; Sims v Police [2000] SASC 102, applied.

PLAYFORD v POLICE
[2017] SASC 26

Magistrates Appeal – Criminal

VANSTONE J.

  1. Mathew William Playford pleaded guilty before a Magistrate to managing and keeping a brothel, dishonestly dealing with money, and assisting in the management of a brothel. The third offence was committed while on bail for the first two. Convictions were recorded on all counts. A single penalty was imposed in the form of a bond under s 39 of the Criminal Law (Sentencing) Act 1988 (SA) in the sum of $1500 for six months, under which the appellant agreed to be of good behaviour and to come up for sentence if called upon.

  2. He now appeals against that disposition, arguing that convictions should not have been imposed, and he seeks to amend the notice of appeal so as to challenge the finding of guilt on the third offence, notwithstanding his plea of guilty.

    Background

  3. The appellant is a qualified lawyer.  At the time of these offences he was no longer practising, due to having been declared bankrupt.  Until about September 2016 he was represented by Messrs Caldicott Lawyers.  However he terminated their instructions.  From that time he represented himself.  Prior to his final appearance before the Magistrate on 28 September 2016 the appellant provided to the Court a written outline of submissions in mitigation of penalty.  On 28 September 2016 he made oral submissions before the Magistrate.  The Magistrate gave ex tempore remarks and imposed penalty on that day. 

  4. The appellant prepared a notice of appeal and sought to lodge it at the Registry.  However, because the fee was not proffered with it, it was not received.  On about 11 October 2016 Messrs Shaw and Henderson were engaged by the appellant and…

Continue reading Playford v Police

Sign in free to access the full text

Details
AGLC
Playford v Police [2017] SASC 26
Case
[2017] SASC 26
Decision Date

CaseChat Overview and Summary

The case of Playford v Police involved the appellant, a former lawyer who had been declared bankrupt and was no longer practising, appealing against the conviction and sentence imposed by the Magistrates Court of South Australia. The appellant argued that the convictions should not have been recorded and sought to challenge the finding of guilt on the third offence despite having pleaded guilty. The appeal was heard by the Supreme Court of South Australia. The legal issues before the court were whether the Magistrate erred in declining to exercise discretion not to record a conviction and whether the conviction on the third count constituted a miscarriage of justice.

The court examined the grounds of appeal, starting with the second ground, which contended that the conviction on the third count was a miscarriage of justice. The appellant had indicated to the police prosecutor that he would plead guilty to all three counts, but on the day of the hearing, the particulars of the complaint for count three were amended. The court acknowledged that the penalty might not have been significantly different, but the prosecutor should have been permitted to call evidence and argue the factual basis for the imposition of penalty. The court found that it would have been wrong for the Magistrate to have acceded to the request not to record convictions. The court concluded that the Magistrate's decision to proceed in the usual way was correct, and the appeal was dismissed.

The final orders of the court were to allow the amendment to ground one of the notice of appeal, refuse the amendment to ground two of the notice of appeal, and dismiss the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

He now appeals against that disposition, arguing that convictions should not have been imposed, and he seeks to amend the notice of appeal so as to challenge the finding of guilt on the third offence, notwithstanding his plea of guilty.Background The appellant is a qualified lawyer. At the time of these offences he was no longer practising, due to having been declared bankrupt. Until about September 2016 he was represented by Messrs Caldicott Lawyers. However he terminated their instructions. From that time he represented himself. Prior to his final appearance before the Magistrate on 28 September 2016 the appellant provided to the Court a written outline of submissions in mitigation of penalty. On 28 September 2016 he made oral submissions before the Magistrate. The Magistrate gave ex tempore remarks and imposed penalty on that day. The appellant prepared a notice of appeal and sought to lodge it at the Registry. However, because the fee was not proffered with it, it was not received. On about 11 October 2016 Messrs Shaw and Henderson were engaged by the appellant and the fee was tendered and the notice of appeal received on 25 October 2016. During the appeal hearing I made an order extending time to that date. In due course an amended notice of appeal was delivered to the Court, although not filed. The amended notice contains two grounds. I set them out in their amended form. 1The learned sentencing Magistrate erred in declining to exercise her discretion not to record a conviction in that Her Honour:1.1 gave insufficient weight to the impact that a recording of a conviction would have upon the Appellant and his ability to practise as a lawyer;1.2 erred in finding that the Appellant’s offending was, in effect, too serious to proceed without the recording of a conviction;1.3 erred in finding that the circumstances of the offending were not trifling (and, in that regard, failing to consider the individual circumstances of each charged offence separately from one another);1.4 erred in confining the exercise of her discretion to those factors set out in section 16 of the Criminal Law (Sentencing) Act 1988; 1.5 gave insufficient weight to those matters favourable to the Appellant and which militated toward proceeding without conviction; and1.6 erred in failing to consider community service as sufficiently addressing the seriousness of the offence.2The conviction of the Appellant in respect of count 3 constitutes a miscarriage of justice in that upon the admitted facts the conduct of the Appellant could not constitute the offence charged and, accordingly, in law he could not be convicted of the offence charged.Proposed appeal against conviction on third count Upon the appeal Mrs Shaw QC appeared for the appellant. In considering the grounds it is convenient to start with ground two, as Mrs Shaw did. Prior to the hearing on 28 September 2016 the appellant indicated to the police prosecutor, Brevet Sergeant Phillis, that he would plead guilty to all three counts. On the day that was to occur, the particulars of the Complaint containing what I shall refer to as count three were amended to strike out the words “kept or managed” and insert “assisted in the management of” a brothel situated at 385 Prospect Road.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

VANSTONE J
While I acknowledge that the penalty might not have been markedly different either way, the prosecutor should have been permitted to call evidence as part of a dispute on facts and should have been permitted to argue the factual basis for the imposition of penalty. The police brief shows that there was objective evidence that count three was, of itself, not an insignificant offence. However, with or without those additional facts, I consider it would have been wrong for the Magistrate to have acceded to the request not to record convictions. Conclusion For the forgoing reasons I do not agree that the approach taken by the Magistrate was attended by error. Plainly, it was within the Magistrate’s discretion to decline not to record convictions. Indeed, I consider that the Magistrate’s decision to proceed in the usual way was the correct one. The appeal must be dismissed. The orders I make are:1. Allow the amendment to ground one of the notice of appeal;2. Refuse the amendment to ground two of the notice of appeal; and3. Dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J

Full text does not contain this section.