Police v RYAN - [2011] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RYAN
[2011] SASC 16
Judgment of The Honourable Justice Nyland
18 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
Prosecution appeal - unrepresented respondent initially pleaded not guilty to charge of using mobile phone whilst driving - respondent maintained she had not used mobile phone but had used iPod to check time - respondent's version conflicted with sworn statement of police officer as to circumstances of offence - without resolving dispute Special JP accepted plea of guilty and imposed penalty without recording conviction on basis of respondent's version notwithstanding that disclosed a defence - appeal allowed - remitted matter back to Magistrates Court.
Australian Road Rules Rule 300; Magistrates Court Act 1991 (SA) s 42(2)(b); Criminal Law (Sentencing) Act 1988 (SA) ss 9, 16, referred to.
R v Osenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; Pollard v Police [2010] SASC 23; Hodgson v Police [2002] SASC 35; R v Perre (1986) 41 SASR 105; R v Nemer [2003] SASC 375, considered.

POLICE v RYAN
[2011] SASC 16
Magistrates Appeal

NYLAND J: This is a prosecution appeal against orders made by a Special Justice of the Peace in the Magistrates Court at Adelaide on 16 October 2010.
Background
The respondent was charged on complaint that on 19 August 2010 at Hackney, being the driver of a vehicle stationary but not parked on the road, namely Botanic Road, she used a hand held mobile phone contrary to the provisions of Rule 300 of the Australian Road Rules. It appears that at the time of the alleged offence the respondent was issued with an expiation notice by the police but on 7 September 2010 she elected to proceed to court.
On 16 December 2010 she appeared before a Special Justice of the Peace sitting in the Petty Sessions Division of the Magistrates Court at Adelaide. She was unrepresented. She initially entered a plea of not guilty but subsequently changed her plea to guilty, following which the Special JP ordered that no conviction be recorded.
The Special JP imposed no penalty and waived court costs but ordered the respondent to pay the Victims of Crime Levy.
The respondent was also unrepresented on the hearing of the appeal. Due to some confusion as to her correct postal address the respondent was not notified of the date of the appeal hearing until a few days preceding it. However, she indicated that she was happy for the appeal to proceed on the appointed date, notwithstanding the short notice, and she did not require an adjournment in order to obtain legal advice.
On the hearing of the appeal counsel for the appellant relied upon the affidavit of Tracy Marie Bridgland, Police Prosecutor, as to what occurred at the hearing before the Special JP. Annexed to that affidavit is a copy of an affirmation of David Craig Oates, the police constable who reported the respondent for the alleged offence. The respondent did not object to the court receiving Ms Bridgland’s affidavit, although she indicated that there were some omissions from it, which are mentioned later in these reasons. However, the respondent indicated that there were a number of matters set out in Constable Oates’ affirmation which were the subject of dispute.
Police version of events
According to Constable Oates, on 19 August 2010 he was on solo uniform patrol in a marked police fleet travelling east of Botanic Road, Adelaide in the middle lane of three. He approached the intersection of Hackney Road then stopped in a line of traffic that was stationary at the red light. As he came to a stop he observed a white Mitsubishi sedan with a Northern Territory registration number immediately to the left of him, also stationary in the line of traffic. He said the window of that car was down about half way and he saw the female driver holding a black mobile phone in her right hand. He described the phone as of slide design and said the slide was open. He said the driver’s right thumb was bent and appeared to be operating a function on the phone. The phone was held in a position between the steering wheel and the driver’s window. He said he had a clear, unobstructed view of the phone. He said he directed the respondent to pull into a car park on Hackney Road. There was then some dispute about the production by the respondent of her licence, as the respondent maintained she had not done anything wrong. Constable Oates said that the respondent told him she was holding the phone in her hand to look at the time. She said she was stationary in the traffic and was not talking to anyone.
The respondent’s mother was in the car with the respondent. Constable Oates said she approached him and also maintained that the respondent had not done anything wrong. She said that she had asked her daughter what the time was and she had looked at the phone to tell her. She said the car was not moving and her daughter had done nothing wrong.
It appears thereafter there was a somewhat heated exchange between the police officer and the respondent and her mother, which ultimately concluded with Constable Oates issuing the Expiation Notice to the respondent.
Respondent’s version of events
On the hearing of the appeal the respondent disputed a number of matters set out in Constable Oates’ statement. She said she was using an iPod and not a mobile phone. She agreed she was stationary at lights at the relevant time but said that her car had tinted windows and that it would not have been possible for anyone to see what was happening in her car. She suggested that the police officer had mistaken the lights on her iPod as being on a mobile phone. She did not have a slide phone, as alleged by the police and asserted that there were several other inaccuracies in Constable Oates’ statement as to the interchange which took place thereafter.
The respondent made further submissions which primarily related to her good character. She said that she never talked on the phone whilst driving and mentioned Oprah’s campaign against using a phone in the car. She agreed that she told Constable Oates that she had done nothing wrong. However, for present purposes the key element in the respondent’s submission was that she had not used her mobile phone on the day in question and the police officer was either mistaken or had not told the truth about that matter.
Hearing before the Special JP
According to Ms Bridgland when the matter was called on before the Special JP the respondent entered a plea of not guilty. The Special JP then encouraged the respondent to discuss the matter after which she asked the prosecutor to read out the allegations. The prosecutor then read out the version of events set out in the affirmation of Constable Oates. The respondent then informed the Special JP that she had not been using a mobile phone. She said she always kept that in her handbag on the back seat of her car to deter her from picking up the phone whilst driving. According to Ms Bridgland, after some minutes of the respondent continuing to deny the charge, the respondent’s mother ‘yelled’ from the back of the court and said, “What if she admits to just checking the time?” The respondent then said that she was guilty, but said she only had her iPod in her hand and was using that to check the time. The respondent’s mother then said that she had the respondent’s iPod with her in court. That was produced to the Special JP, the iPod being bright pale blue in colour.
Ms Bridgland then informed the court that the respondent had not admitted the offence as an iPod did not fit the definition of a mobile phone. She reminded the Special JP that according to Constable Oates, the respondent had been using a black mobile phone and not a small iPod. In those circumstances, the Special JP could not accept a guilty plea, as the offence was not admitted and the respondent had raised a defence to the charge by stating she was using an iPod and not a mobile phone. The Special JP then stated that she was minded to believe the respondent, who she found to be a witness of truth. This was a finding emphasised by the respondent on the hearing of the appeal.
Despite the police prosecutor’s objection, and notwithstanding the factual dispute, the Special JP immediately thereafter proceeded to deal with the matter as a guilty plea but she ordered that no conviction be recorded and did not impose any penalty or costs, other than the Victims of Crime levy.
On the hearing of the appeal the respondent did not take issue with Ms Bridgland’s resume of the hearing before the Special JP, other than the characterisation of her mother’s interjection from the back of the court as having “yelled”. She said her mother had spoken in a normal voice so that the Magistrate could hear and that her mother had simply said the respondent was looking at the time – i.e. on her iPod. The respondent also said that the police prosecutor had omitted to mention in her affidavit that in addition to the production of her iPod to the Special JP, she had also produced its case, which was black in colour.
Procedure on appeal
The prosecution appeals against the orders made by the Special JP pursuant to s 42(2)(b) Magistrates Court Act 1991 (“The Act”). On an appeal under s 42 the task of the appellate court is to reach its own view of the facts. The appeal may proceed by way of a re-hearing. The appellate court can reach a different view of the evidence. The appellate court will only interfere with a sentencing decision when it is demonstrated that the magistrate made some error of principle or allowed extraneous or irrelevant matters to guide or affect his or her decision or mistook the facts or failed to take some material consideration into account. If an appellant is not able to demonstrate one or other of those matters, the appellate court will only interfere in the case of a prosecution appeal if it can be said that the sentence imposed was so far below the appropriate range of sentence that the sentence reflects an error of principle or “shock the public conscience”, namely it is manifestly inadequate.[1]
[1] R v Osenkowski (1982) 30 SASR 212-213 per King CJ and Everett v R (1994) 181 CLR 295 at 299.
Grounds of appeal
In this case, the prosecution has appealed against the orders on the grounds that the learned Special Justice erred in law:
1.   By accepting a guilty plea based on facts that did not disclose an offence;
2.   In not proceeding to hear and determine the matter as a plea of not guilty;
3.   In imposing sentence on the basis of facts given in evidence by the respondent which were disputed by the appellant in circumstances where the appellant was not given the opportunity to call witnesses or lead evidence;
4.   In not recording a conviction.
5.   In that the sentence imposed on the respondent was manifestly inadequate.
Failure to give reasons
No reasons were given by the Special JP for proceeding as she did. However, s 9(1) Criminal Law (Sentencing) Act 1988 (“Sentencing Act”) requires a court, when sentencing, to state its reasons for sentence, although s 9(2) provides that the validity of a sentence is not affected by non-compliance or insufficient compliance with the obligation to provide sentencing remarks. However, the failure to provide sentencing remarks leaves an appeal court in a difficult position when reviewing the sentence or in obtaining some understanding as to why the judicial officer proceeded as he or she did.[2] This is of particular significance in this case as it appears that the Special JP proceeded to deal with the matter as a guilty plea on the factual basis put forward by the respondent, i.e. that she had not used her mobile phone but had simply looked at her iPod to check the time. That factual basis was not admitted by the prosecution and was inconsistent with the observations of Constable Oates. There was therefore a conflict between the facts asserted by prosecution and the defence which could only be determined by each of the witnesses giving evidence on oath and being cross-examined about relevant matters. As King CJ observed in R v Perre:[3]
… The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge
[2] Pollard v Police [2010] SASC 23 Gray J, Judgment delivered 22 February 2010 at [25]-[27]. In Hodgson v Police [2002] SASC 35 Doyle CJ observed that there were some cases in which the failure to give reasons might not embarrass an appellate court in any way but he was referring to a simple case in which there was no dispute as to the facts.
[3] (1986) 41 SASR 105 at 105-106.
In R v Nemer, after referring to the comments of King CJ in Perre, Prior J said:[4]
There is still an onus on the offender to give sworn evidence before the sentencing judge can sentence on a factual basis contradicted by verified statements and sworn evidence not expressly abandoned by the prosecutor. This was a case where the submissions put contradicted the verified statements and sworn evidence. The remarks of King CJ therefore applied. Counsel could not assume that the sentencing judge would sentence upon the basis of her submissions.
[4] [2003] SASC 375 per Prior J at [63].
In this case, the version of events put forth by the respondent – ie that she was using an iPod and not a mobile phone, was a material fact which went directly to the commission of the offence. It therefore required the Special JP to reject the plea of guilty and treat the matter as a plea of not guilty followed by a hearing to determine the dispute.
Section 16 Sentencing Act provides the court with a discretion to proceed without recording a conviction following a plea of guilty if the court is satisfied that the defendant is unlikely to commit the offence again and good reason exists not to record a conviction. Good reason requires the court to consider a number of matters which are set out in s 16(b) Sentencing Act. If, in this case, the Special JP was relying upon s 16 Sentencing Act, to proceed as she did she was in error. She appears to have accepted the version of facts put forward by the respondent as the basis for not recording a conviction. However, that version of the facts provided the respondent with a complete defence to the charge. Accordingly, until the disputed fact as to the use or non-use of the mobile phone by the respondent was resolved, and a finding of guilt made on the basis of facts asserted by police, i.e. that the respondent was using a mobile phone and not an iPod, s 16 Sentencing Act was irrelevant. The appeal is therefore allowed and the orders made by the Special JP are set aside. The matter is remitted to the Magistrates Court for hearing according to law.