Police v Dolphin - [2012] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DOLPHIN
[2012] SASC 3
Judgment of The Honourable Justice Peek
25 January 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - CONVICTIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appellant - a serving police officer - committed an offence by driving through a red traffic light - expiation notice received - appellant approached his mother to have her falsely state she was driving and to agree to plead guilty when charged - appellant submitted a false statutory declaration asserting that he had not been driving.
Appellant pleaded guilty to wilfully making a declaration knowing that declaration to be untrue - sentenced to 3 months imprisonment suspended on entering into a good behaviour bond for 12 months.
Appeal against sentence - appeal against the recording of a conviction.
Held: Appeal dismissed.
Oaths Act 1936 s 27; Criminal Law (Sentencing) Act 1988 s 16, referred to.
R v Wiskich [2000] SASC 64; R v Leach (2003) SASR 139, discussed.

POLICE v DOLPHIN
[2012] SASC 3
Magistrates Appeal

PEEK J. This is an appeal against sentence consequent upon the appellant’s plea of guilty to a charge on Information that he on 17 August 2011 at Port Augusta wilfully made a declaration pursuant to Part 3 of the Oaths Act, 1936 knowing the declaration to be untrue in a material particular.
The facts leading up to the commission of the offence
The appellant was born on 13 February 1990. He joined the South Australian Police force in 2008 when he was 18 years old.
In March 2011 the appellant was accused of sexual assault. This matter was discontinued after a few weeks but the allegation caused the appellant a great deal of embarrassment and stress in the course of his employment and generally.
In July 2011 the appellant drove through a red traffic light which offence was captured by a SAPOL camera and he shortly thereafter received an expiation notice. He only had a provisional driver’s licence; he feared that he would lose that licence and that his consequential inability to drive would seriously affect his employment.
The appellant then approached his mother and it was agreed that he would falsely state that she had been driving and that she would plead guilty when charged. On 17 August 2011, having come to that arrangement, the appellant was at his police station about to have witnessed his signing of a statutory declaration asserting that he had not been driving on the relevant occasion. He was observed by a Sergeant who asked him what he was doing. He explained the arrangement with his mother and the Sergeant immediately told him not to go ahead with the statutory declaration.
Despite this very good advice, the appellant did proceed with making…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Dolphin

Details

AGLC: Police v Dolphin [2012] SASC 3
Case: [2012] SASC 3
Decision Date: 25 January 2012

CaseChat Overview and Summary

In the case of Police v Dolphin, the appellant, a serving police officer, was convicted of driving through a red traffic light. The appellant attempted to mitigate his culpability by instructing his mother to falsely claim she was the driver and to plead guilty on his behalf. The matter was heard in the Supreme Court of South Australia on appeal from a Magistrates Court decision. The central legal issues revolved around the appropriateness of the sentence imposed and whether a conviction should be recorded despite the appellant's plea of guilty.

The Supreme Court assessed the Magistrate's decision to impose a sentence of imprisonment and to suspend it. The court concluded that the length of the sentence was not manifestly excessive and agreed with the period chosen by the Magistrate. Furthermore, the court held that if a period of imprisonment is to be imposed, a conviction must be recorded, regardless of the sentence length. The court also considered the appellant's attempt to adduce fresh evidence regarding the potential impact of the conviction on his future career prospects with the Australian Defence Forces, the Metropolitan Fire Service, or as a security officer. The court was hesitant to accept this new evidence, as it doubted the evidence would have influenced the Magistrate's decision.

Ultimately, the court upheld the Magistrate's decision, finding that the appellant's actions did not suggest a lack of appreciation for the gravity of the offence or a significant mental disorder. The court emphasized that the recording of a conviction is necessary when a penalty of imprisonment is imposed. The appeal was dismissed, and the conviction and sentence remained intact.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Magistrate’s decisions to impose a sentence of imprisonment and to suspend it were correct. There is no basis upon which the length of the sentence he selected can be said to be manifestly excessive; indeed, I agree with the period chosen by his Honour. And, as stated above, if a period of imprisonment is to be imposed, whatever the length, a conviction must be recorded. The application to adduce fresh or further evidence The solicitor who appeared before the Magistrate swore two affidavits which assert that the appellant had instructed him as to his interest in three potential new career paths he might wish to pursue, namely with the Australian Defence Forces (ADF), the Metropolitan Fire Service or as a security officer. He states that he had not perceived a need to make further investigations so as to be able to make further submissions as to the actual ramifications of the recording of a conviction in relation to those career paths. These two affidavits were admitted with the consent of the respondent on appeal and marked exhibits A1 and A2. The appellant also swore an affidavit in which he asserts that it was only subsequent to the sentencing by the Magistrate that he became aware of two things. The first was that the ADF have a policy that the imposition of a suspended sentence bond of the present sort precludes immediate admission and that the consideration of any application would be deferred until the completion of the period of the bond when it would be considered. The second was that, pursuant to s 9(1)(b) Security and Investigation Agents Act 1995, a conviction for an indictable offence prevents application for a security agent’s licence.[4] He makes no assertion as to the position in relation to the Metropolitan Fire Service.[4] See also Schedule 1 of the Security and Investigation Agents Regulations 2011. Counsel for the respondent objected to the reception of this affidavit and I reserved judgment as to whether I would receive it in all the circumstances. I am hesitant as to the receipt of this affidavit because, apart from anything else, I doubt that its contents would have made any difference to the decision of the Magistrate. The appellant has the major difficulty that this is not a case where the circumstances suggest the suitability of a fine or good behaviour bond as sufficient punishment with the question therefore arising as to whether a conviction should be recorded. Rather, this is a case where the Magistrate has decided that, on the material before him, no penalty other than imprisonment was appropriate and the imposition of imprisonment necessitates a conviction being recorded. It sometimes happens that fresh evidence may disclose that the service of a sentence of imprisonment may have a much harder effect on the defendant than could have been envisaged by the Magistrate – but here, of course, the sentence has been suspended. It is possible that in the situation of a suspended sentence, fresh evidence as to the effect of the imposition of the conviction might have such substantial weight as to bear upon the decision of the Magistrate that no penalty other than imprisonment was appropriate but that would be an unusual case.

Decision

Reasons for decision

PEEK J (dissent)

In my view, this was not a case where the appellant did not appreciate the nature and gravity of the criminal conduct or where he was suffering from “a significant mental disorder” or where a significant causal relationship existed between the mental disorder and the commission of the offence. His Honour was correct in approaching the matter on the basis that the aspect of the mental state of the appellant had little impact on the need for deterrence in the present case. Conclusion as to the decision of the Magistrate The Magistrate’s decisions to impose a sentence of imprisonment and to suspend it were correct. There is no basis upon which the length of the sentence he selected can be said to be manifestly excessive; indeed, I agree with the period chosen by his Honour. And, as stated above, if a period of imprisonment is to be imposed, whatever the length, a conviction must be recorded. The application to adduce fresh or further evidence The solicitor who appeared before the Magistrate swore two affidavits which assert that the appellant had instructed him as to his interest in three potential new career paths he might wish to pursue, namely with the Australian Defence Forces (ADF), the Metropolitan Fire Service or as a security officer. He states that he had not perceived a need to make further investigations so as to be able to make further submissions as to the actual ramifications of the recording of a conviction in relation to those career paths. These two affidavits were admitted with the consent of the respondent on appeal and marked exhibits A1 and A2. The appellant also swore an affidavit in which he asserts that it was only subsequent to the sentencing by the Magistrate that he became aware of two things. The first was that the ADF have a policy that the imposition of a suspended sentence bond of the present sort precludes immediate admission and that the consideration of any application would be deferred until the completion of the period of the bond when it would be considered. The second was that, pursuant to s 9(1)(b) Security and Investigation Agents Act 1995, a conviction for an indictable offence prevents application for a security agent’s licence.[4] He makes no assertion as to the position in relation to the Metropolitan Fire Service.[4] See also Schedule 1 of the Security and Investigation Agents Regulations 2011. Counsel for the respondent objected to the reception of this affidavit and I reserved judgment as to whether I would receive it in all the circumstances. I am hesitant as to the receipt of this affidavit because, apart from anything else, I doubt that its contents would have made any difference to the decision of the Magistrate. The appellant has the major difficulty that this is not a case where the circumstances suggest the suitability of a fine or good behaviour bond as sufficient punishment with the question therefore arising as to whether a conviction should be recorded. Rather, this is a case where the Magistrate has decided that, on the material before him, no penalty other than imprisonment was appropriate and the imposition of imprisonment necessitates a conviction being recorded.

Ratio Decidendi

Legal Principle Established

Established by:

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