Playford v Police - [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.

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.
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; and
1.6     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.
In the written submissions provided to the Magistrate, which are before this Court as an annexure to the appellant’s affidavit, appears the following:
5.Mr Playford assisted in managing the setting up of the Brothel at 385 Prospect Road Blair Athol, this business was not owned by Mr Playford, Mr Playford received no money from the business, the business was open for only three weeks in January and February 2016 and is now closed, Mr Playford did not profit in any way from his minor involvement.
In the affidavit of the appellant presented to this Court the appellant avers as follows:
13.My submissions in relation to the facts of my offending are set out at paragraphs 4 to 7 of the written outline (MP-2). In particular, I submitted that, in respect of count 1 there was “only one lady” who supplied sexual services and, in respect of count 3 that I “assisted in managing the setting up of the Brothel”.
(emphasis added)
In her remarks on penalty relating to this count, the Magistrate said:
You submit, and I accept, that in relation to that second brothel you only assisted in setting it up, nothing more.
Section 28 of the Summary Offences Act 1953 (SA) creates the offence charged in counts one and three. Its terms are as follows:
28—Keeping and managing brothels
(1) A person who—
(a)keeps or manages a brothel, or assists in keeping or managing a brothel; or
(b) receives money paid in a brothel in respect of prostitution,
is guilty of an offence.
Maximum penalty: For a first offence—$1 250 or imprisonment for 3 months.
For a subsequent offence—$2 500 or imprisonment for 6 months.
The argument mounted now on behalf of the appellant is that the facts of count three, as found by the Magistrate and upon which the appellant was sentenced, do not constitute the offence charged. It is put that he admitted only conduct preparatory to the commission of an offence.
The admitted facts in relation to count three are difficult to discern. The appellant did not specify in his written submissions exactly what he did by way of assisting in managing the setting up of the brothel. It is clear from the affidavit of the police prosecutor that she had in her brief information which suggested that the appellant’s activities in relation to count three went well beyond providing some necessary items at a time prior to the doors being open for business. It appears from the police prosecutor’s affidavit that she wished to dispute the version of facts given by the appellant, but it is said that the Magistrate was not prepared to hear her; no doubt expecting that the differences would not be material.
I do not consider that the words used by the Magistrate in her ex tempore remarks to describe count three are words of limitation. More important are the words used by the appellant in his acknowledgement to the Court of his guilt of the offence. As seen, those words were not explicit or expansive. But it is to be remembered that the appellant was, formerly, a legal practitioner. He took it upon himself to negotiate with the police, to file written submissions, to negotiate the amendment to the complaint and to make submissions on his own behalf. Furthermore, he had earlier been legally represented. His plea of guilty to count three must be taken to be an informed one.
If there were any doubt in my mind that his acknowledgement of guilt was an informed one, then it would be appropriate to quash the single sentence imposed for all three counts and allow the matter to go back to the Magistrates Court for, probably, a dispute on the facts of count three, if not on the other two counts. However, I have no such doubt.
Furthermore, on any view, the appellant acknowledged facts which constituted him guilty of count three as a person who had aided, abetted, counselled or procured the commission of the offence: s 267 of the Criminal Law Consolidation Act 1935 (SA). At common law a person could not be guilty of a summary offence as an aider, abettor, counsellor or procurer, nor indeed as an accessory before the fact. However, the position is now governed by s 267 of the Criminal Law Consolidation Act which appears as follows:
Part 7B—Accessories
267—Aiding and abetting
A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.
Accordingly, I consider that the appellant’s plea of guilty to count three was properly accepted by the Magistrate without need of the dispute as to the facts being resolved.
The proposed amendment to the grounds of appeal to take in the challenge to conviction on count three was received at this Court electronically on 16 February 2017. Thus it can be seen that the decision to challenge the conviction came some five months after it was recorded. While I acknowledge that in some circumstances a conviction recorded after a plea of guilty can be set aside, that this is such a case is not, in my mind, reasonably arguable. In those circumstances I would refuse leave to amend the notice of appeal to add ground two.
Complaint that no convictions should have been recorded
It is acknowledged that, before the Magistrate, most of the appellant’s submissions were directed toward persuading the Magistrate not to record a conviction on any of the three counts.
Upon the appeal, the appellant attacks the decision to record convictions by reference to what he asserts are errors attending the exercise of the Magistrate’s discretion. There are four suggested errors. The first relates to the Magistrate’s consideration of the extent to which the decision might affect the appellant’s ability to regain his Practising Certificate. Attention is drawn to this passage in the Magistrate’s reasons.
Whereas you are a person of previous good character without a record, the main reason you ask that I not record a conviction is the fact that you will be unable to practice law. In my view, the ability or otherwise of you to practice law does not stand or fall on my decision today. Clearly the recording or the decision not to record a conviction will have some relevance to the ultimate outcome of your career, but I do not have the power to make any decisions in that regard. It is not decisive of the issue and I do not consider that it is appropriate that those who are going to be asked to warrant that you are a fit and proper person for legal practice be misled in any way by the decision I make today.
Emphasis was placed on the Magistrate’s stated desire not to mislead any person charged with the responsibility of considering a future application by the appellant. Mrs Shaw contends that it was wrong to contemplate that failing to record convictions might mislead. It is submitted that the papers lying behind this court appearance would be available to the adjudicator and there would be no question of that person, or body, being misled. Mrs Shaw also referred to submissions made by the appellant before the Magistrate to the effect that the recording of convictions might impact upon his ability to travel overseas with his Chinese wife. There was no mention of this factor in the Magistrate’s reasons.
Next, Mrs Shaw submitted that a close reading of the remarks on penalty showed that the Magistrate considered s 16 of the Sentencing Act only and not s 39 of that Act. Section 16 requires as a prerequisite to declining to record a conviction that a fine or requirement of community service, or both, are to be imposed, and that having regard to certain factors good reason exists for not recording a conviction. Section 39 allows the Court to impose a bond to be of good behaviour without recording a conviction or imposing any other penalty. Both sections require the Court to reach a position where it considers that good reason exists for not recording a conviction. Counsel put that it is not apparent from her remarks that the Magistrate considered imposing community service. Finally, Mrs Shaw submits that the Magistrate erred in finding that, although the offences were “not of the most serious of their kind, they do warrant a conviction being recorded”. It is suggested that this statement reveals a misjudgement of the seriousness of the offence.
I do not consider that the Magistrate’s quite extensive ex tempore reasons disclose any error. Remarks on penalty given by magistrates, and particularly ex tempore remarks, are not to be analysed and deconstructed in the same way as might be settled reasons for judgment. Of necessity, magistrates often deliver ex tempore reasons. If they did not, no doubt their workloads would become overwhelming. Not all cases call for any more than brief reasons identifying, for the benefit of the person to be penalised, what are the critical factors which weighed in the decision on penalty.
Here, the Magistrate focused on the thrust of the appellant’s submissions which went to the question of whether or not to record convictions. She gave quite extensive reasons. They run to two pages. That not every submission made by the appellant was mentioned is of no great moment. There is no obligation to mention every submission or every argument; Sims v Police [2000] SASC 102 at [6] per Bleby J; Gilev v Police [2013] SASC 108 at [7] per David J; McDermott v Police [2014] SASC 175 at [27] per Nicholson J. In particular, I do not consider that the Magistrate was obliged to mention the submission that the imposition of convictions might have an impact on any future overseas travel plans of the appellant. So much is well known, although the desired destination is likely to have an impact. No evidence about particular travel plans or hopes was presented. Neither do I consider that the Magistrate was required to catalogue every conceivable sentencing option available to her. The Magistrate is well experienced and it is plain that she was aware of the full array of options. That the Magistrate made no reference to s 39 of the Sentencing Act does not mean she overlooked it. Indeed, the very penalty imposed by the Magistrate utilised s 39.
The structure of ss 16 and 39 of the Sentencing Act implies an expectation that in the usual case a conviction will be recorded. The recording of a conviction constitutes an important part of the imposition of a penalty. It forms part of the deterrent effect of a sentence and marks the community’s condemnation of the offender for his conduct. In addition, the recording of a conviction acts as notification to potential employers and others who may have a valid reason for knowing the character of the offender. Nevertheless, there will be cases where the likely impact of a conviction upon a person’s employment prospects will be out of proportion to the seriousness of the offending (MacGregor v Police (1995) 66 SASR 269 per Debelle J) and where the totality of the circumstances of the offending and the offender will persuade a court that there is justification for departing from the usual course of recording a conviction.
Courts will be alive to the potential effects, both immediate and future, without need of supporting evidence; although the impact of a conviction on a particular position, or situation, or aspiration might need to be verified. I do not suggest that there was a need for supporting material in the present case.
I can see no error of approach in the Magistrate’s remarks concerning the question of the appellant’s future practice of the law. In her reference to a wish not to mislead, I take the Magistrate to mean that, if she were not to impose convictions, her own appreciation of the seriousness of the offending would not be reflected.
Far from finding any error in the Magistrate’s disposition I agree with her assessment that it would have been inappropriate to decline to record convictions. It is to be noted that the first offence, managing and keeping a brothel, continued over a period of almost one year. The amount of money which police seized which was, according to the admitted facts of count two, obtained through the keeping and managing of a brothel, exceeded $8,500. What I have referred to as count three, assisting in the management of a brothel, took place while the appellant was on bail for counts one and two. This was a separate incursion into crime committed by a man who had already been arrested for a similar offence, to which he ultimately pleaded guilty.
These offences were not explicable as spontaneous outbursts, or out of character losses of self-discipline, as is the case in many offences where a conviction is not recorded. They were planned and executed incursions into crime for the purpose of creating illicit profits.
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; and
3.   Dismiss the appeal.