Police v Watson

Case [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…

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Police v Watson [2016] SASC 92
Case
[2016] SASC 92
Decision Date

CaseChat Overview and Summary

In Police v Watson, the appeal was brought by the police against a sentencing decision of a magistrate in South Australia. The respondent, Watson, was convicted of multiple thefts, amounting to a significant breach of trust. The appeal focused on whether the magistrate erred in not recording a conviction, despite the seriousness of the offending.

The key legal issue was whether the magistrate erred in exercising their discretion not to record a conviction, considering the personal circumstances of the respondent and the public interest. The appellant argued that the magistrate failed to adequately weigh the seriousness of the offence, the number of thefts, the opportunity to desist, and the public interest in disclosing the offending to future employers. Conversely, the respondent highlighted her history of sexual abuse and personal crisis as mitigating factors.

The court found no error in the magistrate’s exercise of discretion. The decision to record a conviction is inherently discretionary and cannot be reduced to a set of criteria. The magistrate appropriately considered both the personal circumstances of Watson and the public interest, concluding that the case warranted tempering justice with mercy. The court held that different judges may weigh relevant considerations differently, and this does not constitute an error. Thus, the magistrate's decision was upheld, and the appeal was dismissed.

No further orders were made by the court beyond dismissing the appeal. The magistrate's original sentencing order, which did not record a conviction, was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.