Police v Watson - [2016] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
POLICE v WATSON
[2016] SASC 92
Judgment of The Honourable Justice Stanley
23 June 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
This is a police appeal against sentence.
The respondent pleaded guilty to one count of dishonestly taking property without consent contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). A magistrate placed the respondent on an 18-month good behaviour bond in an amount of $100 without proceeding to record a conviction.
The police appeal against the failure to record a conviction.
Held:
1. The approach to be taken as a matter of principle in determining a prosecution appeal against a non-custodial sentence imposed by a magistrate is the same approach that would be taken in relation to an appeal by a convicted person against sentence (at [12]).
2. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [14]).
3. The imposition of a bond requiring the respondent to appear before the court for sentencing if so required suggests that the magistrate was employing the provisions of s 39(1) Criminal Law (Sentencing) Act 1988 (SA) (at [20]).
4. The magistrate did not expressly refer either to the respondent’s breach of trust being an aggravating circumstance or that there can be a public interest in a conviction being recorded. This does not disclose any process error in the magistrate’s exercise of his discretion. The magistrate referred to the respondent’s offending as involving a breach of trust. In addition, in considering the exercise of the discretion the magistrate must have considered the public interest in knowing that a person has been convicted of an offence, given that the very issue to which he was addressing his mind was whether to record a conviction (at [29]).
5. Notwithstanding the seriousness of the offending, there were matters personal to the respondent, namely, that the offending was out of character and occurred in circumstances when the respondent’s personal life was in crisis which brought this case within the exceptional category. There was no error in the magistrate having regard to the history of lengthy and protracted sexual abuse she had suffered and the potential that it had some relationship to her offending(at [35]).
6. Appeal dismissed (at [36]).
Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39; Criminal Law Consolidation Act 1935 (SA) s 134, referred to.
Police v Waters [1997] SASC 6500, discussed.
Police v Cadd (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295; Singh v Police [2013] SASC 155; R v Kreutzer (2013) 118 SASR 211; R v Wacyk (1996) 66 SASR 530; Blum v Police [2016] SASC 52; Brookes v Police [2014] SASC 22; Police v Sherratt [2015] SASC 43; R v Lutze (2014) 121 SASR 144; Webb v O’Sullivan [1952] SASR 65; Yardley v Betts (1979) 22 SASR 108; R v Osenkowski (1982) 30 SASR 212; R v Stubberfield (2010) 106 SASR 91, considered.

POLICE v WATSON
[2016] SASC 92
Magistrates Appeal
STANLEY J:
Introduction

This is a police appeal against sentence.
The respondent pleaded guilty to one count of dishonestly taking property without consent contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). A magistrate placed the respondent on an 18-month good behaviour bond in an amount of $100 without proceeding to record a conviction.
The police appeal against the failure to record a conviction.
There are three grounds of appeal, namely:
1.the circumstances of the offending were too serious to warrant the exercise of a discretion to not record a conviction;
2.the need for personal and general deterrence for those who abuse positions of trust to act dishonestly, strongly mitigate against any conclusion that good reason existed for not recording a conviction; and
3.the magistrate did not consider the community’s entitlement to know of the offending.
Principles applicable to prosecution appeals against sentence
On appeal, an issue arose as to the principles applicable to police appeals against non-custodial sentences. The issue arises because of the judgment of the Full Court in Police v Cadd.[1]The respondent, citing the High Court’s judgment in Everett v The Queen,[2] submits that police appeals should only be brought in rare and exceptional circumstances.
[1] (1997) 69 SASR 150.
[2] (1994) 181 CLR 295.
In Everett, the majority (Brennan, Deane, Dawson and Gaudron JJ) said that Crown appeals against sentence should be exercised only in rare and exceptional cases. A Crown appeal against sentence cuts across time honoured concepts of criminal administration by putting in jeopardy for a second time the liberty of the subject. A Crown appeal against sentence can only be justified to establish some matter of principle and to afford an opportunity for an appeal court to perform its proper function by laying down sentencing principles for the guidance of lower courts including avoiding the kind of manifest inadequacy in sentencing standards which constitutes an error of principle.[3]
[3] (1994) 181 CLR 295 at 299 – 300.
In Cadd a majority of this Court (Doyle CJ, Duggan and Mullighan JJ) considered that, notwithstanding s 42 of the Magistrates Court Act 1991 (SA) which confers a right of appeal against an acquittal as well as against a sentence, the Everett principles apply to an appeal against a sentence imposed by a magistrate. However, the limitation in Everett that an appeal court should only interfere on a prosecution appeal where it is necessary to avoid manifest inadequacy or inconsistency in sentencing, was considered by Doyle CJ to apply only in relation to appeals against custodial sentences. He considered that the restrictions expounded in Everett on prosecution appeals do not apply in relation to appeals against non-custodial sentences.[4] These observations were obiter. The respondent submits that these observations were not considered by the other judges forming the majority. I do not accept this submission. Duggan J in his reasons expressed his general agreement with the reasons given by Doyle CJ. While he proceeded to make some additional observations in relation to the nature of prosecution appeals he said nothing to indicate any disagreement with the qualification Doyle CJ expressed in relation to the approach to be taken on appeals against non-custodial sentences imposed by magistrates. Mullighan J expressly agreed with Doyle CJ’s statement of the principles to be applied in the resolution of prosecution appeals against sentences imposed by magistrates.[5]
[4]    Police v Cadd (1997) 69 SASR 150 at 159.
[5]    Police v Cadd (1997) 69 SASR 150 at 173-174.
In Police v Waters[6] Olsson J expressed some difficulty with the logic of the qualification expressed by Doyle CJ in Cadd. Olsson J considered that the dictum was no more than an obiter statement of a single judge. He said the other two members comprising the majority did not direct their minds to it. It did not arise for decision. For the reasons explained above, I consider that both Duggan and Mullighan JJ did adopt the qualification expressed by Doyle CJ in Cadd to the applicability of the Everett principle to prosecution appeals from sentencing decisions of magistrates.
[6] [1997] SASC 6500.
In Waters, Olsson J considered it illogical to draw a conceptual distinction between cases involving a potential custodial sentence and those that do not. He said:[7]
In each case in which there is a prosecution appeal some form of double jeopardy situation necessarily arises. Such an appeal constitutes an attack on an exercise of sentencing discretion with the object of subjecting the respondent to some greater form of sentencing detriment than that which he has been given to understand will be applied. In practical terms the outcome of a case such as that now before me can be as profound and devastating in its effect upon an offender as can be the situation where an appeal results in either the setting aside of a suspended sentence, or the substantial increase of a custodial sentence actually required to be served.
[7] [1997] SASC 6500.
Despite this critique of the qualification in Cadd to the application of the Everett principle, Olsson J in Waters did not conclude that the qualification was wrong. Instead he proceeded to reason that Cadd is a natural corollary of the reasoning in House v The King.[8] He proceeded to dispose of the appeal before him on that basis.
[8] (1936) 55 CLR 499.
Notwithstanding that the qualification in Cadd is obiter, I propose to adopt it. In my view there is logic in the distinction Doyle CJ drew in Cadd between prosecution appeals from custodial and non-custodial sentences. While I accept that the issue of double jeopardy is not irrelevant to an appeal from a non-custodial sentence, there is a substantive distinction between exposing an offender on a prosecution appeal to some form of double jeopardy in relation to a custodial sentence as opposed to a non-custodial sentence. In the latter circumstances I consider that there is no sound reason in principle to require that a prosecution appeal should be allowed only in the rare and exceptional case. If the magistrate has erred in the imposition of a non-custodial sentence, I do not consider that any principle requires that the appellant should be obliged to demonstrate anything other than error on the part of the magistrate in order for an appeal to succeed, unless it is proposed on appeal that the magistrate erred in failing to impose a custodial sentence. This approach is basic to the exercise by an appeal court of its supervisory function.
It follows that the approach to be taken as a matter of principle in determining a prosecution appeal against a non-custodial sentence imposed by a magistrate is the same approach that would be taken in relation to an appeal by a convicted person against sentence. Those principles are well established.
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[9] where Doyle CJ said:[10]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as “manifest inadequacy”.
[9] [2009] SASC 346, (2009) 266 LSJS 283.
[10] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[11] does the appeal court have the power to quash the sentence passed below.[12] As was said in R v Kreutzer[13] by Kourakis CJ,[14] if the error identified by the court is manifest excess or inadequacy (an outcome error), the court will fix the sentence it thinks ought to have been imposed. If the error identified by the court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[11] [1936] HCA 40, (1936) 55 CLR 499 at 504 – 505.
[12] Singh v Police [2013] SASC 155 at [33].
[13] [2013] SASCFC 130, (2013) 118 SASR 211.
[14] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.
Circumstances of the offending
Between 15 September 2013 and 26 January 2014 the respondent was employed as the store manager of a rugs retailer in the southern suburbs. One of her responsibilities was banking the sale proceeds of the business. On 18 separate occasions she stole sums of money from her employer which in aggregate totalled $10,109.75. They varied in amount from $35 to $1,139. A significant portion of this offending occurred following an occasion in November 2013 when senior management of her employer spoke to her in relation to financial discrepancies and a subsequent warning letter on 10 December 2013 in relation to the same subject matter. The offending ceased when she was suspended from her employment on suspicion of being responsible for the financial irregularities discovered by the employer. She subsequently resigned on 30 January 2014. The respondent used the stolen money to pay rent, bills and purchase Christmas presents for her children.
Respondent’s personal circumstances
The respondent has no prior offences. She is 39 years of age. She is a single parent of four children three of whom are in her care. She has no family support. Her relationship broke down shortly before the thefts began. The youngest child is sick, suffering from a kidney condition. She grew up in Tasmania where she was the victim of child sexual abuse by her stepfather for thirteen years. She was employed at the store from 2010 until 2014. Since resignation from the store she has been unable to obtain other employment. This has aggravated an already strained financial position. There is no allegation of any further offending subsequent to her resignation. She has had difficulty in maintaining a stable home for herself and her children because of her inability to pay rent regularly. She has experienced poor physical and mental health over many years.
Magistrate’s sentencing remarks
After referring to the circumstances of the offending, the magistrate said:
On the other hand, you are aged 38. I have read all of the material provided and I am not going to go into it in any great detail. I do not want to embarrass you, but I am sentencing you on the basis that you effectively have no prior history, and nothing for the period of approximately two and a half years since your present offending.
You have already lost your employment from Rugs R’Us. That was a double blow for you because in a sense that you were stealing because you did not have enough money, but that position was only compounded once you were fired for your offending.
You have told the court, through Ms Benson, that you were placed under financial pressure because you had been ‘ripped off’ as you had thought you were paying your rent when you were not.
Ms Benson has asked me to consider not recording a conviction against you. On the other hand, APP Andrews has not only submitted that a conviction is appropriate, but further imprisonment is warranted, although leaving open the question of suspension to the court’s discretion.
I am sure Ms Benson has told you that ordinarily for an offence like this, even with no prior criminal history, you would be [facing] a term of imprisonment, which may or may not be suspended. However, I take into account that you, through no fault of your own, have been the victim of prolonged, repetitive and significant sexual abuse as a child, which was not your fault and which should not have occurred, and I want to stress that, it was not your fault, that you are a victim of this abuse, which was a massive breach of trust by your stepfather. His conduct has then marred your life, including your relationships, and I must take this into account that as forming the general background against your offending.
It is well known to courts and indeed the general public, that the impact from such abuse, may continue until the victim has counselling and help, but often has a lifelong negative impact [on] the victim, affecting their parenting; their relationships; their work history; and then, when they face significant stress in their lives, such victims may offend, whereas they probably otherwise would not. This abuse can also result in alcoholism, dependence on illicit drugs, mental illness and so on.
In your case, you are an articulate and courageous woman. I know you are articulate because I have read your letter in the Victim Impact Statement about the abuse you suffered, and I know that you are courageous because of what you have expressed in that letter.
I am really hoping that you are on the path towards healing. You and I know that it is going to take a long time, but seeking help is the best way forward. You can get those feelings about what happened to you out of your heart by expressing them to someone who you can trust, and who is worthy of that trust. That will start the pain being released. You understand what I am saying?
Turning now to penalty, I take into account your plea; your admissions; your lack of prior criminal history; the lack of any offending since your offending; your personal circumstances at the time and the steps you have made to engage; that is to seek and get help, which in itself takes some doing. I am particularly impressed obviously by the recent (unsigned) letter from your support worker. You are making steps towards really getting your life back on track. I am sure that you love your four children. You only have three with you, and the important thing for you is that they can, hopefully, be given the chances that you were not in life. It is not going to be easy, as a single mum with three children and all that entails.
For all of those reasons, I consider that your situation is hugely and significantly different from the ‘run of the mill’ case, and consequently I am not going to record a conviction.
I have determined that recording a conviction could have an impact in ways that may be unforeseen to you at the moment, including employment; voluntary work or working with children, and so on, and I am of the view that the more appropriate penalty, both for the community and yourself, is to proceed without conviction, placing you on a bond to be of good behaviour for the next 18 months. The amount of the bond is $100. Its conditions are:
1. To be of good behaviour;
2. Come back for conviction if required.
I waive all court and prosecution fees, noting that prosecution fees were requested. I decline to order compensation, although you well and truly deserve to pay it, as I apply s 13 of the Criminal Law (Sentencing) Act.
Being of ‘good behaviour’ means that you do not commit any offence for the next 18 months, so consider yourself like being on ‘probation’. So long as you do not put a foot wrong at the end of that period, the bond will be over, but if you do commit an offence in that 18 months, then you can come back to court, be resentenced and have a conviction recorded. You do not want that to happen. The bond is a written promise to the court to be of good behaviour.
Discretion not to record a conviction

The Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) confers two sources of power on a court to impose penalty without recording a conviction. They are s 16 and s 39. Section 16 provides:
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.
Section 39(1) provides:
39—Discharge without sentence on defendant entering into bond
(1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)    to be of good behaviour; and
(ab)    to comply with the other conditions (if any) included in the bond; and
(b)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
In his sentencing remarks the learned magistrate did not identify which provision he was utilising. However, the imposition of a bond requiring the respondent to appear before the court for sentencing if so required suggests that the magistrate was employing the provisions of s 39(1).
In any event, the issue the magistrate had to decide was whether good reason existed not to record a conviction.
The enquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[15] It is also erroneous to attempt to define “good reason” by reference to other cases in which a court exercised or declined to exercise the discretion to proceed without recording a conviction. The decision that good reason exists not to record a conviction must be made solely on the facts and circumstances of a particular case.[16]
[15] R v Wacyk [1996] SASC 5622, (1996) 66 SASR 530 at 535.
[16] Blum v Police [2016] SASC 52 at [16].
Consideration
Whether good reason exists involves an evaluative assessment. It is a discretionary judgment.[17]
[17] Brookes v Police [2014] SASC 22 at [9].
In determining whether to record a conviction the Court must weigh the benefit to the individual of no conviction being recorded against the public interest in a conviction being recorded.[18]
[18] Police v Sherratt [2015] SASC 43 at [15].
In Police v Sherratt,[19] Sulan J said:
The decision whether to record a conviction involves a consideration of the public interest in the right to know about a person’s offending, the individual’s personal circumstances and the effect the recording of a conviction will have upon that individual. Where a serious offence has been committed, there is a greater need for the public to know of the offending. Those who deal with the respondent in the future have a legitimate right to know about her conduct. Not to record a conviction in the case of an offence such as that which the respondent committed would only be justified in the most exceptional circumstances.
[19] [2015] SASC 43 at [19].
The appellant submits that the circumstance in which the respondent committed this offence is not exceptional and the exercise of the magistrate’s discretion not to impose a conviction miscarried. The appellant submits that the magistrate gave inadequate weight to the fact this was an offence of dishonesty that involved a significant breach of trust; that the offending did not involve a single lapse into criminal conduct but 18 separate thefts; that the respondent had the opportunity to desist from her criminal conduct in late 2013 when she was spoken to by senior management of her employer and received a warning letter but continued to steal a further $7,020; that the respondent gave inconsistent explanations for the offending; and that there is a public interest in the disclosure of her offending to potential employers in the future.
Further, the appellant submits that the magistrate gave too much weight to the respondent having been a victim of child sexual abuse, the contents of the victim impact statement in relation to that abuse and the contents of the unsigned letter from her case worker.
It is important to recognise that a failure to give adequate weight to a relevant consideration or to give excessive weight to relevant consideration does not disclose error.[20] It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways. Accordingly, the submission that the magistrate erred in not giving sufficient weight to the factors identified above and giving excessive weight to the factors identified above, does not disclose a House v King error. The very submission that inadequate weight was given to particular factors implicitly concedes that the magistrate considered those matters. Sentencing is a discretionary judgment. An appeal court will not interfere with a discretionary judgment on the basis of its view that, if it was sentencing, it would have given greater or lesser weight to a relevant consideration weighed by the sentencing judge in imposing sentence.
[20] R v Lutze [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154.
Where a complaint is made that a judge erred in the exercise of a discretion to proceed to impose penalty without recording a conviction the question for the appellate court is: “was it open to the court to decline to record a conviction?”. Only if the decision not to record a conviction falls outside the range of permissible dispositions, having regard to the nature of the offending and the personal circumstances of the offender, is it open to an appellate court to intervene.[21] The magistrate in his sentencing remarks did not expressly refer either to the respondent’s breach of trust being an aggravating circumstance or that there can be a public interest in a conviction being recorded. I do not consider that this discloses any process error in the magistrate’s exercise of his discretion. The magistrate referred to the respondent’s offending as involving a breach of trust. He was plainly alive to this consideration. In addition, I am satisfied that in considering the exercise of the discretion the magistrate must have considered the public interest in knowing that a person has been convicted of an offence, given that the very issue to which he was addressing his mind was whether to record a conviction. Appeal courts must be careful not too readily to discover error in the necessarily economical sentencing remarks of busy magistrates.
[21] See the approach taken by a majority of this Court in R v Lutze [2014] SASCFC 134 at [49], (2014) 121 SASR 144 at 154 in relation to an analogous appeal against a failure to suspend a sentence.
Unlike the position in Sherratt, the magistrate considered that the circumstances of this matter were exceptional. He considered that the position was “hugely and significantly different from the ‘run of the mill’ case”. So it was on this basis that he decided not to record a conviction. In doing so he recognised that a conviction would have an impact in relation to the appellant’s employment in the future in ways that now might be unforeseen. He was obviously influenced by the good prospects for the respondent’s rehabilitation and the deleterious impact that the recording of a conviction might have on them.
In my view there is no error in the approach taken by the magistrate. He considered the respondent’s offending against the background of the significant impact on her of her childhood sexual abuse. He referred expressly to the negative impact such abuse frequently has throughout the life of the victim affecting them in so many ways including by causing them to offend against the criminal law where otherwise they would not.
In Webb v O’Sullivan,[22] Napier CJ said:
The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.
[22] [1952] SASR 65 at 66.
In Yardley v Betts[23] King CJ considered the question of the protection of the public and its interest in successful rehabilitation of offenders. He said:[24]
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations.
...
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.
[23] (1979) 22 SASR 108.
[24] (1979) 22 SASR 108 at 112 - 113.
Later, in R v Osenkowski[25] King CJ further said:[26]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
[25] (1982) 30 SASR 212.
[26] (1982) 30 SASR 212 at 212-213.
In my view the sentencing magistrate recognised that this is one of those cases. This was serious offending that in the usual course would require the recording of a conviction. But as the magistrate recognised this was not the usual case. As this Court observed in R v Stubberfield,[27] it is open to exercise the discretion to proceed without recording a conviction even in cases of quite serious offending. Notwithstanding the seriousness of the offending, there were matters personal to the respondent, namely, that the offending was out of character and occurred in circumstances when the respondent’s personal life was in crisis which brought this case within the exceptional category identified by Sulan J in Sherratt. There was no error in the magistrate having regard to the history of lengthy and protracted sexual abuse she had suffered and the potential that it had some relationship to her offending. This was an occasion to temper justice with mercy. I note however, the magistrate made it a condition of the bond that if the respondent breaches the bond she is liable to have a conviction recorded.
[27] [2010] SASC 9 at [47], (2010) 106 SASR 91 at 103.
Conclusion
I would dismiss the appeal.