Police v Singh - [2010] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SINGH
[2010] SASC 104
Judgment of The Honourable Justice Kourakis
19 April 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Respondent, a taxi driver, pleaded guilty to 21 counts of dishonesty offences, including some committed against vulnerable taxi passengers – Magistrate imposed good behaviour bond without recording convictions – respondent would face difficulties in maintaining employment as taxi driver and other difficulties if convictions recorded – whether sentence manifestly inadequate – whether convictions should be recorded.
Held: Appeal allowed – sentence of Magistrate manifestly inadequate – penalty imposed by Magistrate set aside and community service order imposed with convictions recorded on all counts.
Criminal Law (Sentencing) Act 1988 s 18, s 18A, referred to.

POLICE v SINGH
[2010] SASC 104
Magistrates Appeal: Criminal

KOURAKIS J: This is an appeal against sentence brought by South Australia Police against the sentence imposed on the respondent, Mr Singh, in the Magistrates Court. The sentence appealed against is a simple bond in the sum of $500 to be of good behaviour for a period of 18 months. The bond was imposed pursuant to s 18A Criminal Law (Sentencing) Act 1988 (the Act) as a single penalty on 21 counts alleging offences of dishonesty to which Mr Singh had pleaded guilty. No conviction was recorded on any of those counts.
South Australia Police have appealed that penalty on the ground that it is manifestly inadequate. At the commencement of the hearing of the appeal, I enquired whether Mr Singh wished to obtain an adjournment to obtain legal representation. I advised him that the appellant would submit that the Magistrate’s penalty should be set aside and that instead Mr Singh should be convicted on all of the counts and that a sentence of imprisonment should be imposed. I explained to Mr Singh that because the appellant was seeking a penalty of imprisonment, he was likely to obtain a grant of legal aid. I explained that that grant may well allow him to engage the solicitor who had previously acted for him at no further expense to himself. I emphasised that there was a serious issue to be decided on the appeal and that there was a real prospect that the Magistrate’s orders would be set aside. Mr Singh repeatedly stated that he wanted the matter dealt with as soon as possible. He explained that his employers were waiting to be informed of the final disposition of the matter before deciding whether to give him further employment. I explained to Mr Singh that if the appeal were allowed and a different penalty imposed, his prospects of being able to continue to work as a taxi driver and the prospect of the grant of any further Visa would be small. Mr Singh maintained that he wished to have the matter determined without any further adjournment.
For the reasons that follow, I allow the appeal and set aside the penalty imposed. In place of that penalty, I record convictions on all 21 counts and order that Mr Singh perform 120 hours of community service within six months.
The offending
On 21 October 2009 an elderly passenger hired a taxi to take him from Glenelg to his home in the Adelaide Hills and paid the fare using his credit card. In circumstances which are not clear, the passenger left the card with the driver not knowing that he had done so. Later investigations revealed that the taxi driver was recorded to be a Mr Kumar. The passenger only became aware that he had left the card behind the following day after he was contacted by his bank advising him that the card had been used by another person at various locations around Adelaide. The person who had used the card was Mr Singh. He dishonestly used the card on six occasions to obtain alcohol, petrol, fast food and other goods. The value of the goods he dishonestly obtained in that way was $736. Mr Singh was charged with one count of theft of the card by dishonestly obtaining it and six counts of dishonestly obtaining goods.
A month later, on 21 November 2009, Mr Singh who was working as a taxi driver conveyed an elderly passenger from her home to a hotel. She paid her fare by using a credit card. Unbeknown to that passenger, she left her credit card behind with Mr Singh after she had alighted from the taxi. The passenger only realised that she had left her credit card with Mr Singh when she received a phone call the following day from her bank to advise her that her card had been used by another. Again, the person who had dishonestly used her card was Mr Singh. On this occasion Mr Singh purchased food and alcohol to the value of $1,027 by dishonestly using the card on two occasions. He also attempted to use the card on four other occasions but credit was declined. Had Mr Singh been successful on those four occasions he would have obtained goods to the value of $605.
When police identified Mr Singh as the taxi driver on 21 November 2009 they searched his residence. There they found a mobile phone which belonged to K. The value of that phone was $618. Mr Singh was charged with the theft of that phone. The police also found three other phones and charged Mr Singh with their theft but they have not been able to locate the identity of owners of those phones.
Mr Singh admitted that K’s phone had been left in his taxi by a passenger and that he had dishonestly retained it. Mr Singh made a similar admission with respect to one of the other phones. However, Mr Singh told the police that of the other two phones one was left by a passenger who had decamped without paying the fare and the other by a passenger who had agreed to pay the fare by leaving the phone with him. By his guilty pleas on those counts, Mr Singh has eschewed any reliance on a defence of claim of right. Whatever the precise circumstances of the retention of the telephones by him, Mr Singh has, accepted by his pleas of guilty, that he was not entitled to retain the telephones and that he knew that he had no such entitlement.
During the search of Mr Singh’s residence, the police also found a taxi driver photograph accreditation identification card and a taxi driver accreditation licence (the identity documents) in the name of Dheeraj Kumar. Mr Kumar and Mr Singh are cousins. However, on both of the identity documents appear a photograph of Mr Singh. Mr Singh admitted to police that he had applied for the identity documents and had forged his cousin’s signature. Mr Singh told police that he did this as a favour for his cousin who was working at the time and did not want to lose pay by taking time out to complete the forms himself. Mr Singh had presented a taxi driver training passport and a passport of the Republic of India when he applied for the identity documents. Those documents must have been in Mr Kumar’s name however, the photograph of Mr Kumar in the passport resembled Mr Singh enough to allow him to successfully defraud the licensing authority.
Mr Singh’s offending is serious in a number of respects. First, the offences are many.
Secondly, the individual offences are serious. Credit cards are important items of personal property and their theft can cause loss, distress and inconvenience. Credit card fraud not only causes individual and corporate loss but it is also a significant public mischief. Mobile phones play an important role in the personal lives of their owners. Their theft causes much personal inconvenience. Moreover, stolen mobile phones can, on occasion, if they fall into the wrong hands, facilitate the commission of other offences. False identification papers can also facilitate the commission of offences and make crimes difficult to detect. In this very case the false identification documents have left some doubt as to whether Mr Singh, or his cousin, Mr Kumar, was working the taxi on the occasion of the theft of the first of the credit cards. Mr Singh told police that his cousin was driving the taxi and that his cousin stole the card and handed it to him. The taxi worksheets for 21 October record Mr Kumar as the driver. However given the similarity between the photographs of Mr Kumar and Mr Singh that claim must be the subject of considerable doubt.
Thirdly, the theft of the card on 21 November and the thefts of the mobile phones were committed whilst Mr Singh worked as a taxi driver. Members of the community, particularly elderly members or members who suffer one form of disability or another, are dependent on the services provided by taxis. Taxi cab passengers are, to varying degrees, in a position of some vulnerability when using taxi services. In particular, they are dependent on the honesty of taxi drivers in paying for the fares and with respect to any property they might happen to leave behind. Mr Singh’s offences are a serious breach of the advantageous position he held as a taxi driver.
Fourthly, the offending shows a worrying degree of persistence on Mr Singh’s part.
Personal circumstances
Mr Singh is a young man. He has no previous convictions. His father serves as a police officer in India. Mr Singh resides in Australia on a Student’s Visa. He completed a Diploma in Community Welfare with the Cambridge International College in January of this year. He is currently enrolled in a business and management course with another private college. He has supported himself and paid his fees by working very hard as a taxi driver.
References which spoke highly of Mr Singh from his neighbour and a former employer were received by the Magistrate.
The affidavit of the prosecutor does not disclose anything more about his antecedents. I do not have the advantage of an affidavit from the solicitor who appeared for Mr Singh before the Magistrate. No other information about Mr Singh’s personal circumstances is set out in the Magistrate’s reasons.
At the time that the submissions were made before the Magistrate, the Magistrate was advised that Mr Singh’s solicitor was in possession of $2,000 which would be paid into court immediately to compensate the victims of his fraud. Mr Singh advised me from the bar table that since that time the remainder of a compensation ordered by the Magistrate had been paid. Mr Singh informed me that he has also had paid the court imposed levies.
The Magistrate’s Reasons
The Magistrate commenced his remarks by referring to recent publicity about the general circumstances of Indian students in Australia. The Magistrate then referred to difficulties often faced by taxi drivers generally and taxi drivers with a non-Caucasian appearance in particular. It is not apparent to me why the Magistrate made those remarks. They had no relevance to the sentencing of Mr Singh. Indeed the Magistrate does not seem to have linked those opening remarks with his reasons for imposing the penalty that he did. As best I can tell, the Magistrate simply wished to assure Mr Singh that he had an understanding of the difficulties he faced in studying and working in Australia. In those circumstances, I am not persuaded that the Magistrate gave the matters to which he adverted in the first two paragraphs of his remarks any weight. The Magistrate described the offending as “pretty foolish childish behaviour”. A little later the Magistrate observed “there is a whole lot of stuff put together that paints a fairly serious picture but one that is probably different to your true character”. Other than those two references, there is no other discussion of the offending. Those two remarks in particular, and the structure of the remarks as a whole, leave me with some concern that the Magistrate did not appreciate the serious aspects of the offending to which I earlier referred. However, the penalty he imposed is not appealed on the ground that he failed to have regard to those aspects and I need not further consider that issue.
The Magistrate did not give any reasons for not recording a conviction, but he did explain why he did not impose a term of imprisonment in this way:
I could have easily have [sic] imposed a term of imprisonment this afternoon, gone on and suspended it, I think in the short term that would have finished your career absolutely as a taxi driver, it would have jeopardised seriously your chances to stay on in Australia and last but no means least sent you back to India where ultimately it would have all come out because you would have had to explain why instead of this glowing new life in Australia you have come home.[1]
[1] Remarks on Penalty of Mr K Edgecomb SM dated 12/2/2010 at [6].
To some extent the reasons which the Magistrate gave for not imposing a suspended sentence of imprisonment serve as an indication of his reasons for not recording a conviction and for imposing a simple bond.
Discussion
A sentence which otherwise fits the circumstances of the offending and the offender should not be altered or ameliorated in any way by a sentencing court in an attempt to avoid the anticipated consequences of the administrative acts of government or the responses of other members of the community such as employers. On the other hand it is appropriate to have regard to those consequences in a general way to identify the sentence which is best calculated to promote the rehabilitation of the offender. In that limited sense it would be appropriate to consider the extent to which imprisonment, or even suspended imprisonment, would interfere with the prospects of Mr Singh’s future rehabilitation.
A similar approach can be taken to the question of whether or not a conviction should be recorded. It is important to say at the outset that a sentencing court should not refrain from recording a conviction in order to assist an offender to conceal the fact of his or her offending from public authorities.[2] In any event to refrain from recording a conviction for that reason is unlikely to achieve that purpose. Increasingly public authorities, employers and other institutions do not limit their enquiry to the existence of convictions; enquiries are now often made about the commission of offences, whether a conviction was recorded or not. However, again, in assessing the extent to which the rehabilitation of an offender might be assisted by refraining from recording a conviction a sentencing court may have regard to the fact that on some occasions an offender will be able to pursue a career or obtain an approval or licence because the relevant authority is only concerned with, and only enquires about, convictions. The sentencing court may also have regard to the fact that an authority or employer may be favourably influenced by the fact that the court has seen fit to express its view about the very mitigating circumstances in which the offence was committed by refraining from recording a conviction. In that general way the consequences of recording a conviction may be taken into account.
[2] W v March (1983) 35 SASR 333 at 341-2.
The nature and persistence of the appellant’s offending does not allow it to be described as trivial, minor or in any other way substantially mitigated. It is true that by recording a conviction the appellant’s prospect of obtaining professional or semi-professional employment will be substantially reduced. In particular the prospects that Mr Singh obtain employment in the taxi industry will be substantially reduced although many forms of other employment will remain open to him. On the other hand it is extremely important that authorities which regulate a public activity by reference to the character of the participants in it are under no misapprehension as to the seriousness of the appellant’s conduct. If any of those authorities were not to learn of this conduct because they enquired only about convictions their regulation of the area of public activity for which they were responsible would be severely compromised. If an authority which enquired about offending generally was to assume that the appellant’s offending was minor, trivial or committed in extenuating circumstances, because no conviction was recorded then again that authority’s regulation of the public activity, for which it is responsible, would be severely compromised.
I understand the sympathy which the Magistrate felt for Mr Singh because of the hardship he was prepared to subject himself to in order to achieve some level of personal advancement. I understand the Magistrate’s desire to avoid disrupting his efforts. Notwithstanding the Magistrate’s great experience in dealing with matters such as this I have come to the conclusion that the failure to record a conviction was plainly unreasonable and that the sentencing discretion has therefore miscarried. In my view Mr Singh’s antecedents provided no reasonable basis upon which to refrain from recording the sanction of a conviction which was so obviously called for by the objective circumstances of the offending.
That conclusion alone is sufficient for the whole of the penalty to be set aside and for Mr Singh to be resentenced. However it is appropriate that I also record my conclusion that the penalty of a simple bond was manifestly inadequate. That penalty was an unreasonably lenient sentencing response to persistent offending of this scale which exhibited the serious aspects to which I have earlier referred.
Conclusion
I allow the appeal. I set aside the penalty imposed by the Magistrate. I record convictions on all of the charged offences. Pursuant to s 18A of the Act I impose a single penalty. That penalty is the imposition of 120 hours community work to be performed within six months during which period Mr Singh will be under the supervision of a Community Corrections Officer.