POLICE v Payne

[2012] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

POLICE v PAYNE

[2012] SASCFC 20

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Stanley)

9 March 2012

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal to the Full Court in private - the application for permission to appeal was filed about three weeks out of time as a result of an administrative error - if application for permission to appeal is granted, an order extending time is appropriate - after hearing an appeal against a decision of a Magistrate to refuse to suspend the respondent's sentence for the offence of indecent filming, a single Judge of the Supreme Court of South Australia allowed the appeal and suspended the sentence - whether the Judge erred in allowing the appeal and suspending the sentence - whether this is an appropriate case to establish principles in relation to sentencing for the offence of indecent filming - whether the Judge's scrutiny of the Magistrate's reasons was incorrect - whether the case raises a matter of importance relating to the exercise of the sentencing discretion by a Magistrate and to the circumstances in which an appellate court is justified in setting aside an order exercising the sentencing discretion.

Held: extension of time within which to appeal refused - not an appeal in relation to which it is appropriate to grant permission to appeal.

Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Supreme Court Civil Rules 2006 (SA) r 290; Summary Offences Act 1953 (SA) s 23AA(1), referred to.

POLICE v PAYNE
[2012] SASCFC 20

Full Court:      Doyle CJ, Anderson and Stanley JJ

1. THE COURT:       This is an application for permission to appeal against a decision by a Judge of this Court. Permission to appeal is required because the Judge’s decision was a decision on appeal from a judgment of the Magistrates Court: s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA).

2. The application has been considered by the Court comprising Doyle CJ, Anderson J and Stanley J. 

3. Pursuant to r 290 of the Supreme Court Civil Rules 2006 (SA) the Court has considered the appellant’s summary of argument, the reasons of the Judge and the reasons of the Magistrate in question.  The Court has considered the application without hearing from the respondent.

4. The notice of appeal, containing the application for permission to appeal, was filed about three weeks out of time.  This was the result of an administrative error within the office of the Crown Solicitor.  If the matter is one in which it is appropriate to grant permission to appeal, it would be appropriate in all the circumstances to extend the time for the filing of the notice of appeal to the date on which it was filed. 

5. The respondent pleaded guilty to 18 counts of indecent filming, contrary to s 23AA(1) of the Summary Offences Act 1953 (SA). The Magistrate imposed a sentence of imprisonment for 18 months. But for the pleas of guilty the sentence of imprisonment would have been for two years. The Magistrate fixed a non‑parole period of seven months. The Magistrate declined to suspend the sentence.

6. For present purposes it suffices to say that the offences arose as a result of the respondent installing in a house, that he leased, concealed cameras that were used to record an occupant of the house and her boyfriend participating in sexual activity. 

7. On appeal to this court a Judge allowed the appeal.  The Judge set aside the sentence imposed by the Magistrate.  The Judge imposed, in effect, the same head sentence and non-parole period, after allowing for one month’s imprisonment that had been served by Mr Payne.  The Judge suspended the sentence that he had imposed.

8. The appeal is against this decision.  Permission is sought on three grounds.  First, on the basis that this is an appropriate case for the Court to give guidance to Magistrates in sentencing for what is a recently created offence, the relevant section having come into force in February 2009.  Second, on the basis that the Judge’s approach to the scrutiny of the Magistrate’s reasons was incorrect.  Third, on the basis that the case raises an issue of importance relating to the exercise of the sentencing discretion by a Magistrate and to the circumstances in which an appellate court is justified in setting aside an order exercising the sentencing discretion.

9. The central issue is the Magistrate’s decision not to suspend the sentence, and the manner in which the Judge scrutinised that decision.

10. This is not an appropriate case to establish principles in relation to the sentencing for the offence in question.  There is no dispute about the head sentence or the non-parole period.  The only issue is the question of the suspension of the sentence.  A decision on that point, in the circumstances of the particular case, is unlikely to provide any worthwhile guidance to Magistrates.  Accordingly, this is not a case in which the grant of permission to appeal is warranted to lay down or to provide guidance for Magistrates.

11. As to the second point, the Magistrate’s reasons are thorough and detailed.  So are the reasons of the Judge.  In considering the question of suspension the Magistrate said that the offending fell somewhere between possession of child pornography and rape, in terms of seriousness.  In our opinion that is not an appropriate approach to sentencing.  Comparison of this kind between offences of a quite different nature is likely to mislead.  It does not follow that the Magistrate erred, but it can at least be said that what the Magistrate said on this point is suggestive of error.  The sentencing Judge was critical of the Magistrate for saying that she could not fully suspend the sentence because of the serious nature of the offences.  The Judge said that the Magistrate’s approach suggested an erroneous approach based on a conclusion that an order suspending a sentence of imprisonment could not be made in relation to this type of offence.  We must say that we would not have read the Magistrate’s reasons in that manner.

12. Be that as it may, it is not appropriate to grant permission to appeal merely to enable detailed aspects of the reasoning to be revisited.  Sometimes that may be appropriate, but in this case, in the end, the issue is the exercise of a widely expressed power, namely, to make an order for suspension if there is good reason for so doing.  It is not particularly profitable for the Court to revisit this issue, for what would be the third consideration of the issue.

13. A similar comment applies in relation to the third basis advanced for a grant of permission to appeal.  The principles to be applied when an appellate court reviews the exercise of a sentencing discretion are well established.  The only issue in this case is whether the Judge was right in finding that the Magistrate had erred.  That, in itself, is not a sufficient reason for a grant of permission to appeal.

14. There are two considerations that tend to support a decision not to grant permission to appeal.  First, the sentence was imposed on 30 September 2011, and since then Mr Payne has served one month’s imprisonment, and has been released on bail pending appeal.  Second, we consider that there are good arguments on either side of the question of suspension.  The grant of permission to appeal will, in the end, require this Court to review and consider once again the exercise of the power to suspend or to decline to suspend.

15. For all those reasons the Court considers that this is not an appropriate case for a grant of permission to appeal.

16. That being so, the appropriate order is an order refusing to extend the time for the institution of the appeal, the proposed appeal not being an appeal in relation to which it is appropriate to grant permission to appeal.