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 the declaration before another police officer and the matter proceeded to a point where an expiation notice was in fact issued to the appellant’s mother. The Sergeant who had spoken to the appellant learnt that the appellant had in fact submitted a statutory declaration and reported it. The appellant was interviewed, reported and charged. His mother was separately approached for an interview but declined to answer questions until receiving legal advice.[1]
[1] Facts contained in the Apprehension Report read to the Magistrate as deposed to in the affidavit of the prosecutor, received by consent, exhibit R1.
On 12 September 2011, the appellant was charged with the present offence and on 27 October 2011 he resigned as a police officer.
The appellant’s antecedents and mental state
The appellant had no previous convictions and was a man of otherwise good character.
A report by Mr Cox, a psychologist, confirmed that the discontinued allegation of a sexual offence had caused him great stress, affecting his sleep and leading him to panic and over react when he received the expiation notice which in turn increased his stress and lack of sleep; his actions were driven by feelings of pressure and desperation rather than calm and careful thought. Mr Cox was of the view that the appellant was suffering from an adjustment disorder with depressed mood.
Sentencing by the Magistrate and the submissions on appeal
On 16 November 2011, the Magistrate imposed a sentence of imprisonment of three months taking into account the plea of guilty. He suspended that sentence upon the appellant entering into a bond to be of good behaviour for a period of 12 months.
It is important to note that the mechanism whereby a Magistrate may abstain from recording a conviction in a case such as this is s 16 Criminal Law (Sentencing) Act 1988 which is as follows:
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.
It is to be observed that the only way that the power to proceed without recording a conviction pursuant to s 16 can be enlivened is if the Magistrate first determines that a fine, a sentence of community service, or both, will constitute sufficient punishment. In other words, if the Magistrate determines that no penalty other than imprisonment is appropriate, there is no power to impose a sentence of imprisonment without recording a conviction.
On appeal, counsel for the appellant rightly stressed that the imposition of a sentence of imprisonment (that is to say before suspension of such sentence is considered) is a matter of last resort and, further, that when making that decision one must take into account, amongst other things, the impact upon the defendant of the very imposition of the sentence and recording of the conviction.
I agree, but there is no reason to suppose that his Honour proceeded on any other basis. His Honour specifically addressed the critical question of whether no lesser penalty than imprisonment was appropriate and decided that no lesser penalty was appropriate. He did so in circumstances where he was actively considering the submission that no conviction should be recorded.
His Honour correctly observed that this was a serious offence and that generally the system of law relies upon people who have taken an oath or affirmation to proceed to tell the truth and that, particularly in the present type of case, untruths may be difficult to detect. In such circumstances, general deterrence had a significant role to play in sentencing.
His Honour correctly recognised that it was all the more serious for a police officer to commit such offending in circumstances where the appellant, due to his training as a police officer, well knew that he was committing a serious criminal offence coupled with the fact that he had been specifically warned by the Sergeant not to do so.
His Honour further noted that the very statutory declaration form at the top in bold print explicitly warns that there is a maximum penalty of four years imprisonment for the offending but, despite this, the appellant deliberately involved his mother in the plan he was contemplating and went on to commit.
In my view, his Honour took all relevant mitigating matters into account. He fully took into account the matters concerning the appellant’s youth, his antecedents and the possibility that the recording of a conviction might have a detrimental effect on his future.
His Honour also fully took into account the appellant’s mental and emotional state at the relevant time. The appellant refers to the decision in R v Wiskich,[2] and complains that his Honour “did not balance the aspect of general deterrence against the psychological component of the offending”. I disagree. In Wiskich, Martin J (with whom Prior and Williams JJ concurred) stated:
[62]In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. …
[2] [2000] SASC 64.
In terms of the types of disorders being considered in the cases referred to within the judgment in Wiskich, the disorder of the present appellant was quite mild. In any event, it did not significantly affect “the capacity of the offender to appreciate the gravity and significance of the criminal conduct”. In my view, this appellant did in fact “act with knowledge of what is being done and with knowledge of the gravity of the criminal conduct” and therefore (as Martin J observed) “the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected.”
Martin J continued the above passage thus:
[62] …It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
I note that in the subsequent decision in R v Leach,[3] Perry J (with whom Nyland and Bleby JJ concurred) stated that “the relevant distinction which should be drawn is between cases where the mental illness does not affect the offender’s knowledge of the nature and gravity of the criminal conduct, and cases, which will generally arise where the mental illness is more serious, where it does affect the offender’s understanding of those matters”.
[3] (2003) 85 SASR 139, 144.
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.
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.
Here the effect of the evidence is at most moderate. In what appears to be the appellant’s preferred option, that of making an application for entry into the ADF, the position appears to be that consideration of the application will have to be deferred for the period of the 12 month good behaviour bond, that is to say until 16 November 2012. This is really the only new development in relation to the ADF since it was always appreciated by both the appellant and the Magistrate that the existence of a conviction may have some effect on the decision of whether the appellant would in fact be admitted upon his application being actually considered.
In relation to the Metropolitan Fire Service, the affidavit makes no assertions as to what, if anything, might be the effect of such a conviction.
In relation to a security guard’s licence, this career was ranked well behind the other two possibilities in the submissions before the Magistrate but is now given somewhat more prominence. The impediment constituted by s 9(1)(b) Security and Investigation Agents Act 1995 does appear more concrete and definitive than the asserted position in relation to the other possible careers but it must always have been envisaged that such a conviction would likely be a problem in applying for a licence of this type, even if the extent of the problem was not then appreciated.
Re-sentencing the appellant
In the somewhat unusual circumstances here, I consider that the most expeditious course is to receive the affidavit of the appellant, Trent Charles Dolphin, sworn on tenth of January 2012 and proceed to a re-sentencing. I mark the affidavit exhibit A3.
I take into account all of the material placed before the Magistrate together with the material in the affidavit of the appellant exhibit A3, the affidavits of the solicitor appearing before the Magistrate (received on appeal by consent as exhibits A1 and A2) and the affidavit of the prosecutor appearing before the Magistrate (received on appeal by consent as exhibit R1). I also have regard to the submissions made on behalf of the appellant before the Magistrate and on the appeal (as well as, of course, to the submissions of the prosecutor below and prosecution counsel appearing on the appeal).
I consider that on the whole of the evidence and material, including that relating to the deleterious effect of the recording of a conviction, this is a plain case where no penalty other than imprisonment is appropriate. I also consider that the appropriate period of imprisonment is three months (after taking the plea of guilty into account) and that there is good reason to suspend the sentence. The effect of this conclusion is necessarily that a conviction must be recorded.
Since my views as to the appropriate sentence coincide with the sentence that has been passed, I see no point in formally setting aside the sentence and orders of the Magistrate only to reimpose them in exactly the same terms. I consider that the appropriate order is simply that the appeal be dismissed.
Orders
1. The affidavit of the appellant, Trent Charles Dolphin, sworn on tenth of January 2012 is received and marked exhibit A3.
2. The appeal is dismissed.