Pollard v Police
[2010] SASC 23
•22 February 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLLARD v POLICE
[2010] SASC 23
Judgment of The Honourable Justice Gray
22 February 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - CONSTITUTION OF COURT AND GENERALLY - SOUTH AUSTRALIA
Appeal against the recording of conviction - defendant and appellant pleaded guilty to cultivating four cannabis plants contrary to section 33K(2) of the Controlled Substances Act 1984 (SA) - conviction imposed by a special Justice and defendant fined $300.00 - no reasons for decision provided - defendant appeared unrepresented - whether special Justice erred by failing to invite defendant to make submissions regarding discretion to proceed without recording a conviction - whether special Justice erred by recording a conviction - office of special justice - question of jurisdiction of the special Justice.
Held: appeal allowed - defendant denied procedural fairness - absence of reasons constituted error - failure of special Justice to inform defendant of potential to proceed without recording a conviction constituted error - matter considered afresh - no conviction recorded.
Controlled Substances Act 1984 (SA) s 33K(2) and s 45A; Controlled Substances (General) Regulations 2000 (SA) reg 7 and reg 9B(1); Magistrates Court Act 1991 (SA) s 3, s 7A and s 9A; Acts Interpretation Act 1915 (SA) s 4; Justices of the Peace Act 2005 (SA) s 7 and s 8; Criminal Law (Sentencing) Act 1988 (SA) s 9, s 16 and s 39, referred to.
Corporation of the City of Enfield v Developments Assessment Commission (1999) 199 CLR 135; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185; Attorney-General (Commonwealth) v Queensland (1990) 25 FCR 125; Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77; Jones v Police [2009] SASC 137; Shrubsole v Rodriguez (1978) 18 SASR 233; Leslie v Police [2001] SASC 270; Corak v Police [2006] SASC 172; O’Donoghue v Police [2007] SASC 169; Germain v Police [2006] SASC 340; Hodgson v Police [2002] SASC 35; Hodgins v Police [2008] SASC 176; Sims v Police (2000) 30 MVR 524; O’Hanlon v South Australia Police (1994) 62 SASR 553; MacGregor v Police (1995) 66 SASR 269; Buttigieg v Police (1999) 74 SASR 229; McAvaney v Quigley (1992) 58 A Crim R 457; R v Lambert [2009] SASC 307; Schmidt v Police [2005] SASC 482; Cooling v Steel (1971) 2 SASR 249, considered.
POLLARD v POLICE
[2010] SASC 23Magistrates Appeal
GRAY J.
This is an appeal against sentence. In particular, it is said that the special Justice hearing the matter, was wrong to record a conviction.
Introduction
The defendant and appellant, Bryce Norton Pollard was charged with the cultivation of four cannabis plants contrary to section 33K(2) of the Controlled Substances Act 1984 (SA). It was alleged by the prosecution that the defendant had cultivated a controlled plant, namely cannabis, not exceeding the prescribed number of plants.
On 17 February 2009, the defendant appeared before Special Justice Amoroso in the Mount Gambier Magistrates Court, and entered a plea of guilty to the offence charged. The defendant was unrepresented. The special Justice sentenced the defendant, recording a conviction and imposing a fine of $300.00 together with fees and levies. In addition, the special Justice ordered forfeiture of the four plants.
Section 33K of the Controlled Substances Act provides:
(1) A person who—
(a) cultivates a controlled plant (other than a cannabis plant); or
(ab) cultivates a cannabis plant by artificially enhanced cultivation; or
(b) cultivates more than the prescribed number of cannabis plants; or
(c) cultivates a cannabis plant intending to supply the plant or to supply or administer any product of the plant to another person,
is guilty of an offence.
Maximum penalty: $2 000 or imprisonment for 2 years, or both.
(2)A person who cultivates not more than the prescribed number of cannabis plants is guilty of an offence.
Maximum penalty: $1 000 or imprisonment for 6 months, or both.
(3)A court sentencing a person for an offence against subsection (2) that is a simple cannabis offence (within the meaning of section 45A) must not impose any sentence of imprisonment in relation to the offence.
Regulation 7 of the Controlled Substances (General) Regulations 2000 (SA) provides:
For the purposes of section 33K of the Act, the prescribed number of cannabis plants is 5.
Section 45A of the Controlled Substances Act further provides:
45A—Expiation of simple cannabis offences
(1) A prosecution for a simple cannabis offence cannot be commenced except by—
(a) the Director of Public Prosecutions; or
(b) a member of the police force; or
(c)a person authorised in writing by the Director of Public Prosecutions to commence the prosecution.
(2) Subject to this section, if a person (not being a child) is alleged to have committed a simple cannabis offence, then before a prosecution is commenced, an expiation notice must be given to the alleged offender under the Expiation of Offences Act 1996.
(3) Expiation fees (which may vary according to any factor) may be fixed by regulation for the purposes of this section.
(7) Non-compliance with subsection (2) does not invalidate a prosecution.
(8) For the purposes of this section—
simple cannabis offence means—
(a)an offence against section 33K(2) involving the cultivation (not being artificially enhanced cultivation) of cannabis plants other than an offence involving the cultivation of a number of cannabis plants in excess of the number prescribed by regulation for the purposes of this paragraph; or
…
A simple cannabis offence is further defined in Regulation 9B(1) of the Regulations:
For the purposes of paragraph (a) of the definition of simple cannabis offence in section 45A(8) of the Act, the prescribed number of cannabis plants is 1.
The matter was not expiable as it was not a simple cannabis offence within the above definition.
Background
During October and November 2008, the defendant, with another young man, took part in the cultivation of four cannabis plants. At that time the defendant was aged 19 years and worked as an apprentice metal fabricator.
On 1 November 2008 the police received information that a small number of cannabis plants were being grown along the side of a motel at Mount Gambier. The police attended and observed four cannabis plants growing in pots. All plants were less than 10cm in height. The police first spoke to the defendant’s friend who was reported for cultivating cannabis, and who named the defendant as also being involved with the cultivation.
On 11 November 2008, the defendant attended the Mount Gambier Police Station and at the request of the police, agreed to a video interview. The defendant told the police that he and the other young man shared the idea of growing the cannabis from seedlings and that they both took part in the nurturing of the seedlings. The defendant said that the plants had been nurtured for about two weeks and that he was growing the cannabis out of curiosity. According to the apprehension report the defendant was extremely apologetic and remorseful for his actions. The defendant invited the police to search his residential premises if they had concerns as to his further involvement with drugs.
The Appeal
On 11 February 2010, I allowed this appeal and set aside the conviction recorded by the special Justice. The appeal raises several important issues. A special Justice, an officer of the Court without legal training, denied procedural fairness to the unrepresented defendant. For reasons to be discussed below, it is apparent that the special Justice had no regard to a checklist that had been prepared to provide guidance to the Court when dealing with an unrepresented defendant. The checklist provides for the name of the defendant to be inserted and for the provision of an appropriate endorsement against each item of the checklist. The checklist appears on the Court file in regard to the within proceeding. The checklist is without any entry. The reverse side of the form has been used by the special Justice to endorse the penalties imposed.
As the special Justice was dealing with a matter that in the ordinary course would be heard by a Magistrate, special care and attention was required. The need for the unrepresented defendant to be properly advised of his rights by the Court was acute.
The special Justice was apparently unaware of recent Full Court authority from this Court, addressing the discretion not to record a conviction in an almost identical factual circumstance.[1] This recently published Full Court authority followed earlier judgments of the Court to a similar effect. The Police were represented before the special Justice by a legally untrained prosecutor. As mentioned above, the defendant was unrepresented. In the circumstances, not only was there a denial of procedural fairness to the defendant, but the Court was apparently totally unaware of the guidance provided by decisions of this Court. It is to be observed that this would appear to be a direct consequence of the lack of adequate legal training of those concerned with the administration of justice in this case.
[1] R v Lambert [2009] SASC 307 (Duggan, Sulan & Kourakis JJ).
Although it has been unnecessary to resolve the issue of jurisdiction, the circumstances appearing from the Court file, and from information provided during the hearing, would suggest that the special Justice acted without jurisdiction. The jurisdiction of the special Justice turned on the non-availability of a Magistrate. As it transpired, a Magistrate was sitting at the Court at the same time that the within proceeding was heard by the special Justice.
The reasons that follow address these matters of concern in some detail. In the ordinary course, these reasons may be viewed as being unduly lengthy. However, I have addressed the matters fully, by reference, to authority in the hope that they may provide guidance where needed.
The defendant appeals against the sentence imposed by the special Justice and specifically, against the recording of a conviction. The grounds of appeal are that the special Justice denied the defendant procedural fairness and in particular erred by failing to invite the defendant to make submissions regarding the matters set out in section 16(b) of the Criminal Law (Sentencing) Act 1988 (SA), and by the recording of a conviction. The defendant contends that in the circumstances, the special Justice ought to have proceeded without recording a conviction pursuant to the discretion not to do so provided in sections 16 and 39 of the Sentencing Act.
On the hearing of the appeal, it was pointed out that the decision of the special Justice not to exercise his discretion pursuant to sections 16 or 39 of the Sentencing Act, and to instead record a conviction, was not supported by reasons. In addition, on the hearing of the appeal, the defendant challenged the jurisdiction of the special Justice to hear the matter. This topic will be returned to later in this judgment.
Denial of Procedural Fairness
The defendant has filed an affidavit in support of the appeal in which he has deposed to the following:
On 17 February 2009 I appeared unrepresented before Mr Amoroso SJP sitting in the Mount Gambier Magistrates Court.
On that occasion I entered a plea of guilt to having pursuant to section 33K(2) of the Controlled Substances Act 1984 cultivated a controlled plant not exceeding the prescribed number of plants.
After entering that plea the prosecution set out the allegations.
The prosecution further advised the Court that I appeared without any prior convictions.
Mr Amoroso SJP asked if I wished to make any comments in mitigation of penalty.
In response I indicated that I was sorry for my actions and assured His Honour that I would not commit further offences.
I was not asked for any further personal particulars.
I was not invited to address His Honour regarding whether His Honour ought to consider exercising his discretion to refrain from recording a conviction in the circumstances.
I was not aware that I could make such submissions on my behalf.
The first I was made aware of the likely implications of a conviction of this nature was when speaking to my partner Gabrielle Sare on 15 September 2009.
Many authorities have addressed the issue of the duties of a court when dealing with the unrepresented defendant. It is convenient to draw on the observations of Wells J in Cooling v Steel:[2]
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed — especially where the court has the power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court. Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v. Deed and R. v. Maitland, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[footnotes omitted]
[2] Cooling v Steel (1971) 2 SASR 249 at 251.
In a case such as the present proceeding in which it is apparent that an application under sections 16 or 39 might succeed, a judicial officer should inform an unrepresented defendant of that possibility.[3] This ensures that the defendant is aware of their rights, and is accorded procedural fairness. As an unrepresented defendant it is important that the defendant understand the choices he might make following on a plea of guilty, the breadth of the jurisdiction of the Court and, in particular, the discretion maintained by the Court to proceed without recording a conviction. In my view, special Justice Amoroso denied the defendant procedural fairness in this respect.
[3] Schmidt v Police [2005] SASC 482 at [12].
As will be discussed later in these reasons, a number of circumstances of the defendant fall to be considered under section 16(b)[4] and militate against the imposing of a conviction. These matters may also be relevant in the consideration of whether to proceed without recording a conviction pursuant to the power contained in section 39 of the Sentencing Act.
[4] The character, antecedents, age or physical or mental condition of the defendant, the fact that the offence was trifling, or any other extenuating circumstances.
Within the Magistrates Court file with respect to the present proceeding is what is described as “Checklist for guilty plea unrepresented defendants - place this on the court file when completed”. The checklist that is on the Court file is devoid of any entry. The reverse side of the checklist has been used by the special Justice to make a record of the penalties imposed.
The checklist provides as follows:
Checklist for guilty plea unrepresented defendants
place this on the court file when completedname of defendant
(……………………………………………..)
topic
place tick
explain the charge using ordinary language
advise them of the range of penalty that is likely to be
imposed if they plead guiltyadvise them that they have a right to get some legal advice before the plea
advise that you will give them an adjournment to another
day to get legal adviceask them
“knowing all that I have just told you do you still wish to
plead guilty today and have the matter dealt with.”read the charge and take the plea of guilty
ask them to listen carefully to the facts as they are to be
alleged by the prosecutionhave the facts read and prior convictions alleged by the
prosecutionask them if they agree with the facts alleged
if they do not agree [with] the facts hold it [in] the list to allow them to negotiate what the agreed facts are
ask them if they agree the alleged prior convictions
ask them what they want to say about the matter
ask for specific information that you need in mitigation of the penalty
eg their ability to pay a fine
eg their reliance on a licence
if they are a first offender (non traffic matters) ask them if they ask for a conviction not to be recorded against their name
consider community service in substitution of the proposed fine – see sheet
[emphasis added]
In the present proceeding there was a material denial of procedural fairness. The special Justice was either unaware of his duties and obligations when dealing with a young unrepresented defendant, or chose to ignore those obligations and breached those duties. The emboldened portion of the checklist was either overlooked or ignored.
Failure to give Reasons
The denial of procedural fairness outlined was compounded by the special Justice’s failure to provide reasons for his decision.
Section 9(1) of the Sentencing Act requires a court when sentencing to state its reasons for imposing the sentence and to cause an explanation of the legal effect and obligations of the sentence to be given to the defendant in simple language. The special Justice did not on this occasion deliver sentencing remarks or reasons in compliance with the statutory obligation in section 9(1). However, section 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.
In Jones v Police[5] I considered the nature of the obligation contained in section 9(1) and the apparent conflict of that obligation with the provisions of section 9(2). During the course of my reasons I examined the relevant authorities which have considered this issue. Following this analysis I concluded:
Common to the approach of the above authorities has been a distinction between the concepts of validity and error. Whilst a failure to comply with section 9(1) will not prevent the sentence delivered from standing as a valid and enforceable order of the Court, this does not preclude a separate challenge alleging that the otherwise valid order was reached by a faulty means such as an error of law or fact, and that it should be set aside.
This approach appears to recognise the different purposes for which reasons are delivered. Earlier decisions have considered that the primary purpose of giving reasons on sentence is for the benefit of the defendant.[6] Later decisions have recognized the additional role of reasons in assisting an appellate court to perform its role of reviewing the sentence.[7] The wording of section 9(1), particularly subsection (b), suggests that both section 9(1) and section 9(2) are concerned primarily with the former rather than latter purpose. In this context, the failure to comply with section 9(1) might be regarded as one of a number of procedural matters not affecting validity of the order of the Court, without precluding subsequent challenge in the event of an error of law or fact.
The provisions of section 9 do not prevent a Court from setting aside a decision where a failure to provide adequate reasons frustrates the discharge of the appellate function by a court of review, or where such failure results in justice being not seen to be done. Section 9(2) saves such a sentence from being regarded as “invalid” in the sense that the sentence will remain a valid order of the Court. However, section 9(2) will not save such an order from being set aside in the event that it was arrived at in error.
A failure to comply with section 9 leaves the appeal court in a difficult position. It has to review the sentence without the assistance of any sentencing remarks or without any other understanding of why the Magistrate in the present case imposed the particular sentence. More specifically, the Court is unaware of whether the Magistrate gave any consideration at all to proceeding without recording a conviction or, if she did consider that matter, why she declined to exercise her discretion.
The Crown conceded that the Magistrate was obliged to deliver reasons for penalty.[8]
[5] Jones v Police [2009] SASC 137 at [30]-[42].
[6] Shrubsole v Rodriguez (1978) 18 SASR 233 at 235 (Wells J); Leslie v Police [2001] SASC 270 at [18].
[7] Corak v Police [2006] SASC 172 at [10]; O’Donoghue v Police [2007] SASC 169 at [11]-[13].
[8] Germain v Police [2006] SASC 340; O’Donoghue v Police [2007] SASC 169.
A failure by a court of summary jurisdiction to give reasons for the sentence imposed, on the hearing of a plea of guilty where no custodial sentence is to be imposed and where there is no factual dispute, does not necessarily constitute an error of law. As Doyle CJ observed in Hodgson v Police:[9]
…in a simple case in which there is no dispute about the facts, the absence of reasons might not embarrass an appellate court in any way. It might be that in such a case a failure to give reasons is not an error of law and that the sentence should not be set aside unless it is excessive.
The suggestion that reasons must always be given appears to me to have been made in cases in which, generally, a custodial sentence was in issue or, alternatively, there was a factual dispute to be resolved.
[9] Hodgson v Police [2002] SASC 35 at [8]-[9].
In cases where it would be obvious why a judicial officer would not exercise the section 16 discretion, there may be no real need for the provision of reasons.[10] As Doyle CJ concluded in Hodgson:[11]
… In some cases, I think there will be no real need for the Magistrate to give reasons because it would be fairly obvious why the Magistrate would not have exercised the discretion or, alternatively, it would be a case where the giving of reasons would be unlikely to add much.
[10] Hodgson v Police [2002] SASC 35 at [3], [8]-[9]; Jones v Police [2009] SASC 137 at [22] onwards.
[11] Hodgson v Police [2002] SASC 35 at [32]; Jones v Police [2009] SASC 137 at [31].
Failure to provide sentencing remarks deprives the appellate court of the opportunity to understand the reasons for the sentence. In the circumstances of the within proceedings, the failure to provide reasons for recording a conviction deprives this Court of the opportunity to accurately assess the consideration, if any, given by the special Justice to the option of proceeding without recording a conviction.
In the circumstances I find that although the sentence is valid in accordance with section 9(2) of the Sentencing Act the special Justice fell into error in failing to provide reasons.
Sections 16 and 39
The power of the Court to proceed without conviction has its source in two statutory provisions – sections 16 and 39 of the Sentencing Act. On the hearing of the appeal, counsel for the defendant argued that the special Justice should have refrained from recording a conviction, pursuant to the discretion not to do so provided in these sections.
Section 16 provides:
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.
The exercise of the section 16 discretion is enlivened if the court is satisfied of a number of preconditions. First, the court must propose to impose a fine, a sentence of community service, or both. Secondly, it must be satisfied that the defendant is unlikely to commit such an offence again. Thirdly, the court must be satisfied that there is good reason not to record a conviction, having regard to one or more of the factors set out in section 16(b). These factors are the character, antecedents, age or physical or mental condition of the defendant, the fact that the offence was trifling or any other extenuating circumstances.
If those preconditions are satisfied, the discretion is enlivened; however that discretion is not necessarily required to be exercised. The Court must consider whether, notwithstanding the satisfaction of those preconditions, it is, in all the circumstances, appropriate to exercise the discretion.
In Hodgins[12] I considered the exercise of the discretion pursuant to section 16:
It is to be observed that there are a number of preconditions to the enlivening of the discretion under section 16 not to record a conviction. The Court must propose to impose a fine, a sentence of community service, or both, and the Court must then form the opinion referred to in section 16(a), and then, having regard to the factors referred to in section 16(b), the Court must reach the conclusion that good reason exists for not recording a conviction. When those preconditions are satisfied, the discretion to proceed without recording a conviction is enlivened.
As Bleby J, when referring to section 16, observed in the course of his ex tempore reasons in Sims:[13] “If the necessary opinion is formed, it is unlikely that the Court will record a conviction”. I agree with this observation. However, Bleby J further commented that:[14]
[T]he assumption behind s 16 of the Sentencing Act is that in most cases a conviction will be recorded. S 16 is by way of exception to the normal rule.
Counsel for the Crown accepted that this remark should not be understood to impose any fetter on the Court’s discretion. Counsel agreed that if the preconditions were established, and the discretion enlivened, then, as Bleby J earlier observed, it was unlikely that the Court would record a conviction. Counsel’s submission was that, in this particular case, as the relevant act was one of domestic violence, the Court should record a conviction.
[12] Hodgins v Police [2008] SASC 176 at [14]
[13] Sims v Police (2000) 30 MVR 524 at [5].
[14] Sims v Police (2000) 30 MVR 524 at [7].
The alternative provision under which the Court may proceed without recording a conviction is section 39:
(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.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2) Where a defendant is discharged under this section—
(a) no fresh prosecution may be commenced in respect of the offence; and
(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
In Hodgins I considered the differences in the wording of sections 16 and 39, noting that the provisions operate in difference circumstances: [15]
There are important differences in the wording of sections 16 and 39. The preconditions to enliven the respective discretions differ. Under section 39 there is no need for the Court to be intending to impose a fine or to make a community service order. There is no requirement for the Court to have regard to particular factors in arriving at the conclusion that good reason exists to discharge the defendant without recording a conviction. No doubt, as observed in Yousef,[16] the factors to be considered by the Court in exercising the section 39 discretion may be similar to the factors that arise under section 16. However, it is important to recognise that the sections have different work to do and operate in different circumstances.
[15] Hodgins v Police [2008] SASC 176 at [15].
[16] R v Yousef (2005) 155 A Crim R 134.
It is to be observed that the recording of a conviction may have serious adverse impacts on a defendant, particularly in relation to employment and future prosects of employment. These considerations have consistently been regarded as fundamental when considering whether to exercise the discretion pursuant to sections 16 and 39.
In O’Hanlon,[17] Bollen J took the view that the potential handicap posed by a conviction provided good reason for not recording a conviction in circumstances where the offender was unlikely to reoffend:
Looking at the matter generally, as I say, we know as I repeat, that a conviction may handicap someone in getting a job. I think that in the circumstances in this day and age in the state of the labour market good reason does exist here for not recording a conviction on the score that it is unlikely that this young man will offend in this way again and on the score of his good character, his good antecedents and his age. I think that, even allowing for the seriousness of some of the offences but taking into account the spontaneous nature of the offences and the apology at the time, I can say that the magistrate here erred in giving too little weight to the good things that can be said about the appellant and to the effect that the arrest and appearance in court must have had on his resolution for the future.
[17] O’Hanlon v South Australia Police (1994) 62 SASR 553 at 557.
In MacGregor,[18] Debelle J emphasised that depending on the circumstances, a merciful approach may be appropriate despite the seriousness of an offence, particularly when considering the gravity of the consequences of a conviction:
The criminal law exists for the protection of the public and the protection of the public must remain the first concern of the court. But public concern about crime should not displace the fundamental concepts of justice and mercy which should animate criminal tribunals of civilised nations. Whilst the protection of the public is the first concern of the courts, if, consistently with that, the courts can, in their compassion, assist another human being to avoid making ruin of his life, they ought to do so. These observations will immediately be recognised as those made by King CJ in Yardley v Betts (1970) 22 SASR 108 at 112-113. Many years earlier, like observations had been made by Napier CJ in Webb v O'Sullivan [1952] SASR 65 at 66 where his Honour said: “The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as earlier 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 to award the maximum which the offender will warrant, but rather the minimum which is consistent with the due regard for the public interest.” In refusing to accede to the submission that convictions should not be recorded, the magistrate has, I think, failed to have sufficient regard – or, indeed, any regard – to the circumstances of this offender and to consider whether, in all of the circumstances, a merciful approach towards him would, notwithstanding the seriousness of the offence and his offending, justify the course which he was asked to take. His reasons do not disclose any consideration of those factors. Again, I acknowledge that allowance must be made for the fact that the learned magistrate was busy and had a heavy list to discharge. Nevertheless, it does appear that the seriousness of the offending was the sole determinate for him or, if not, he has, at the end of the day, given it undue weight without a sufficient consideration of the circumstances of the offender.
…
There is another omission from the reasons of the learned magistrate which suggests that he has failed to have regard to all relevant facts in the exercise of his discretion. Section 16 of the Criminal Law (Sentencing) Act sets out the factors to which regard should be had. First, an assessment must be made whether the defendant is unlikely to offend again. Secondly, regard must be had to the alternatives listed in par (b) of s16. It is to be emphasised that they are expressed in the alternative. In my view, the magistrate has failed to have regard to the last of those alternatives, namely, whether there are extenuating circumstances which constitute a good reason for not recording a conviction. The magistrate’s reasons do not address this issue at all and thus give rise to the view that he has failed to have regard to that factor. The fact that a conviction would jeopardise the appellant’s prospects of gaining employment was, in all the circumstances, an extenuating factor which would justify not recording a conviction.
In my view, the consequences of the convictions are quite disproportionate to the seriousness of the appellant’s conduct. That conclusion stems, of course, from the fact that there is a real risk that they might jeopardise his attempt to secure employment in the new endeavour which he has undertaken. The appellant has undertaken a course of study with a view to advancing his situation in life. That has not only been a burden upon his time, but also upon his pocket. There can be little doubt that the rehabilitation of the appellant will be best achieved if he is able to gain employment in his chosen field. The appellant is aged 36 years and, as I have already mentioned, has no prior convictions. One can have a good deal of confidence in concluding that it is unlikely that he will offend again. The public interest will best be served by giving him every opportunity to pursue this new endeavour which he has chosen and which is, on any view, an advancement over his present position.
[18] MacGregor v Police (1995) 66 SASR 269 at 272-273.
These remarks of Debelle J were approved by Martin J in Buttigieg,[19] who further observed:
The impact of a conviction upon a young person hoping to improve his life by undertaking tertiary education with a view to entering the teaching profession must not be underestimated. This issue has caused me considerable anxiety but, on balance, I have decided that it is appropriate not to record convictions and to impose a penalty that will enable the appellant to get on with his rehabilitation and his future without the impediment of the convictions.
[19] Buttigieg v Police (1999) 74 SASR 229 at [24].
It is relevant to note that even in cases of quite serious offending, this Court has exercised its discretion to proceed without recording a conviction. The decision in Buttigieg involved offences of break, enter and larceny, and false pretences, and in McAvaney v Quigley,[20] the Court proceeded not to record a conviction following a plea of guilty by a young man to a charge of assault occasioning actual bodily harm.
[20] McAvaney v Quigley (1992) 58 A Crim R 457.
More recently, in Lambert,[21] the Court of Criminal Appeal considered circumstances similar to those of the within proceedings. In that case, the defendant pleaded guilty to cultivating two cannabis plants. Those plants were being grown using hydroponic equipment and were of a large size. The plants were partially stripped and loose cannabis was also located on the premises. In that case, despite the relative seriousness of the charge and despite the fact that the defendant was represented at the time of sentencing, the Court on appeal considered that it was inappropriate to record a conviction in the circumstances. During the course of his reasons, Sulan J, with whom Duggan and Kourakis JJ agreed, observed:[22]
[21] R v Lambert [2009] SASC 307.
[22] R v Lambert [2009] SASC 307 at [19]-[24].
The recording of a conviction has a punitive aspect. In R v Yousef, Sulan and Layton JJ observed:
A conviction does not merely record a finding that the person committed the crime charged: it condemns him for the crime; it is a communicative act, communicating censure to the convicted person. The recording of a conviction acts as a general deterrent to others who may be inclined to offend in a similar way.
There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.
The recording of a conviction can have serious consequences for an individual, as it may affect his future employment prospects, his ability to travel and his acceptance into professional or trade associations linked with his profession or trade. A submission to a court not to record a conviction is a matter that requires detailed consideration by the court.
In R v Briese, the Queensland Court of Appeal observed that the question of whether to record a conviction is one of considerable importance. The Court observed that there are persons and organisations, including prospective employers, companies such as credit providers, and government departments such as immigration authorities, which have a legitimate interest in knowing the truth about the character of persons who deal with them. Furthermore, if a court concludes that, in the circumstances of a particular case no conviction is to be recorded against an offender, that fact is of significance to any person or organisation which may have a legitimate interest in the background and character of that offender.
Parliament has recognized that the recording of a conviction can have a significant deleterious effect upon an offender. The offender will carry the conviction with them into many walks of life. It acts as continual punishment and may be a factor adverse to the rehabilitation of an offender. It follows that power has been given to courts not to record a conviction. I agree with the observations made in Briese, that a court will be more easily persuaded against the recording of a conviction where there are no prior convictions, or a very minor history, and where the offence in question is a so‑called “victimless” crime.
The offence could not be described as trifling. On the other hand, it is at the lower end of seriousness for offences involving the cultivation of cannabis. The appellant is a young man. He has no prior convictions. The experience of having been taken into custody and interviewed by the police would have acted as a significant lesson to him. He was frank with the police, and has co-operated throughout. He has demonstrated his contrition by his early plea of guilty. He has taken steps to cease using cannabis by consulting with his doctor. I am satisfied that he is unlikely to offend in the future. He is likely to make a contribution to the community, and be a law-abiding citizen.
A conviction has a real potential to handicap the appellant in gaining employment. The appellant is in the final year of his apprenticeship as an electrician, and a conviction may affect his ability to work as an electrician. This is an appropriate case in which to exercise the discretion not to record a conviction.
[Emphasis added – footnotes omitted]
These observations of Sulan J are relevant and apposite to the within proceedings. The considerations identified as pertinent when assessing whether to proceed without a conviction, are of similar relevance in the present proceeding.
The errors identified, being the denial of procedural fairness outlined and the failure to give reasons, require this Court to consider afresh the entire matter.
One Further Matter - The Office of Special Justice
As earlier observed, when sentenced for his offence, the defendant appeared before a “special Justice”. As noted, on the hearing of the appeal, counsel for the defendant raised an objection to the jurisdiction of the special Justice to sentence the defendant. Submissions on this topic were not fully developed. The errors identified above require the orders of the special Justice to be reconsidered irrespective of any challenge to jurisdiction. However, the proceedings create a useful opportunity to explore the office of “special Justice”, in some depth.
The office of special justice is unique to South Australia. Special justices are appointed to the Magistrates Court and the Youth Court. In addition, they may be appointed to form a Visiting Tribunal for judicial review of cases within the prison system. The office of special justice enables the office-holder to exercise judicial functions.
Section 7A of the Magistrates Court Act 1991 (SA) provides that the Court may be constituted of a special justice as follows:
(1) Subject to this section, the Court, when sitting to adjudicate on any matter, must be constituted of a Magistrate.
(2) The Court may—
(a)in its Petty Sessions Division be constituted of a special justice; and
(b)in any other case, be constituted of a special justice if there is no Magistrate available to constitute the Court, but when constituted of a special justice, the Court may not impose a sentence of imprisonment in criminal proceedings.
…
but, when constituted of a special justice, the Court may not impose a sentence of imprisonment.
[emphasis added]
Pursuant to that Act, “judicial office” means the office of Magistrate or special justice.[23] “Special justice” is defined in the Acts Interpretation Act 1915 (SA) as meaning a justice who has been appointed as a special justice, whilst “justice” means a justice of the peace for the State.[24] As such, a special justice must first be appointed as a justice of the peace.
[23] Magistrates Court Act 1991 (SA) section 3.
[24] Acts Interpretation Act 1915 (SA) section 4.
Section 7 of the Justices of the Peace Act 2005 (SA) outlines the appointment of special justices:
(1) The Governor may, on the recommendation of the Attorney-General, appoint a justice to be a special justice.
(2) A special justice will be appointed on conditions determined by the Governor for a term, not exceeding 5 years, specified in the instrument of appointment and, at the expiration of a term of appointment, is eligible for reappointment.
(3) The Attorney-General will not recommend that a justice be appointed as a special justice unless the Attorney-General is satisfied that the justice—
(a)has successfully completed a course of training approved (after consultation with the Chief Justice of the Supreme Court) by the Attorney-General; and
(b)is, in the opinion of the Attorney-General, suitable to be appointed as a special justice; and
(c) meets the requirements prescribed by the regulations.
(4) The conditions of appointment may include conditions specifying or limiting the official powers that the special justice may exercise.
(5) A special justice is entitled to such remuneration as may be determined by the Governor for the performance of judicial duties.
Section 7 requires a course of training to be undertaken prior to any appointment by the Governor. The course of training undertaken by justices of the peace seeking to become a special justice is offered by the Technical and Further Education College of South Australia. The course has two components. The first, “Justice System”, is of a duration of one semester; a six month equivalent component. The second is a mandatory intensive three day group-work course. The intensive session operates as a practical training component.
Section 8 of the Justices of the Peace Act outlines the powers of justices and special justices as follows.
(1) Subject to the conditions of his or her appointment as a justice, a justice has the powers conferred on a justice by or under this Act, the Oaths Act 1936 or any other Act.
(2) Subject to the conditions of his or her appointment as a special justice, a special justice has (in addition to the powers conferred on a justice) any powers of a judicial or quasi-judicial nature, or authority to make an inquiry or receive evidence, conferred on a special justice by or under an Act.
(3) A reference in any other Act to a justice or special justice and the exercise of a power or authority by a justice or special justice under that Act is to be read as a reference only to a justice or special justice who is, under the conditions of his or her appointment, able to exercise that power or authority.
(4) An act done outside of the State by a justice for the purpose of taking a declaration or attesting an instrument or document in writing intended to take effect in the State is as valid and effectual as if the act were done in the State, unless the act is required by law to be done in the State.
It is to be observed that the powers of special justices are subject to limitations. Special justices are not empowered to impose a sentence of imprisonment.[25] Of further relevance, is that the powers of a special justice may be defined and limited by the conditions of their appointment.[26]
[25] Magistrates Court Act 1991 (SA) section 7A.
[26] Justices of the Peace Act 2005 (SA) section 8(2).
As specified in section 7A of the Magistrates Court Act, a special justice is limited to the Petty Sessions Division unless there is no Magistrate available to constitute the Court. The Petty Sessions Division is outlined in section 9A of that Act:
The Court in its Petty Sessions Division has jurisdiction—
(a) to reconsider matters remitted to the Court under section 70I of the Criminal Law (Sentencing) Act 1988 and make appropriate orders under that section; and
(b) to hear and determine a charge of an offence against the Road Traffic Act 1961 for which no penalty of imprisonment is fixed; and
(c) to conduct a review of an enforcement order under section 14 of the Expiation of Offences Act 1996.
The offence of cultivate a controlled plant falls outside the jurisdiction of the Petty Sessions Division.
On the hearing of the appeal, the question arose as to whether in the circumstances of the within proceedings, there was no Magistrate “available” in accordance with the provisions of section 7A of the Magistrates Court Act. A further inquiry was made in relation to the specific terms or conditions of Special Justice Amoroso’s appointment and whether these limited the powers of a special justice as provided for by section 8 of the Justices of the Peace Act.
As a consequence of these inquiries, information was provided to the Court indicating that on the day on which the defendant appeared before the Court, the resident Magistrate was sitting in a General Court in Mount Gambier with 25 files listed, plus additions and arrests. Special Justice Amoroso was also sitting in a General Court in Mount Gambier, with 32 files listed before him. The information provided, revealed that no special justice appointments made pursuant to section 7 of the Justices of the Peace Act have included any conditions limiting or altering the statutory powers as outlined above.
According to the Police, the information provided confirmed that at the time the defendant was sentenced, there was no Magistrate “available” to constitute the Court in accordance with section 7A of the Magistrates Court Act and as a consequence, Special Justice Amoroso, it was contended, had jurisdiction to hear the matter. It was said that the expression “available to constitute the Court” ought to be interpreted as meaning “ready and able”. It was contended that on the day in question, having regard to the list with which the resident Magistrate was occupied, there was no Magistrate “ready and able” to hear the charges against the defendant.
Whether or not a Magistrate is available to constitute a court is a precondition to a special justice sitting in a jurisdiction other than the Petty Sessions Division. The concept of there being no Magistrate “available” is a jurisdictional fact as the jurisdiction of a special justice relies on the satisfaction of this condition. The concept of “jurisdictional fact” was explained by Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Developments Assessment Commission:[27]
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.
[27] Corporation of the City of Enfield v Developments Assessment Commission (1999) 199 CLR 135 at 148.
The seminal elucidation regarding this principle can be found in Parisienne Basket Shoes Pty Ltd v Whyte, [28] where Dixon J (as he then was) observed:
It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.
This statement of the law has been recently cited with approval by five members of the High Court in Berowra Holdings Pty Ltd v Gordon.[29]
[28] Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391.
[29] Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 375 [31]; also, more generally, at 374–376 [28]–[32].
Whether legislation operates to create a pre-condition in such a way is a question of construction. In Woolworths Ltd v Pallas Newco Pty Ltd[30] Spigelman CJ observed:
The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.
[30] Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 710 [6]; see also for a more recent summary of the authorities, Besanko J in Beyazkilincv Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465 at [41]; for the nature of jurisdictional fact and consequential invalidity, see Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185 at [93]-[95].
A number of authorities have alluded to the difficulty of a jurisdictional fact being vague or difficult to determine. In Attorney-General (Commonwealth) v Queensland[31] Jenkinson J discussed the meaning of the word “Aboriginal” in the context of a Commissioner’s decision made on the basis of a person’s aboriginality. Jenkinson J adopted the observations of the Judge under appeal, which observations included the following:
It would seem, however, to be burdensome, both from the point of view of supervising courts and from that of the administrative body, to have the former undertake the task of repeatedly determining jurisdictional issues dependent on questions of fact in matters arising before the latter. Particularly is that so where the jurisdiction is made to depend upon an expression which is inherently vague, like 'Aboriginal'…
[Emphasis added]
[31] Attorney-General (Commonwealth) v Queensland (1990) 25 FCR 125 at 129.
A similar observation was made by Jones J in Black & White (Quick Service) Taxis Ltd v Sailor & Anor[32] where his Honour considered the scope of a Tribunal’s jurisdiction:
The circumstances here called for the Tribunal to determine whether it had jurisdiction and then to decide how the discretion was to be exercised. The Tribunal member purported to exercise her discretion whilst holding a doubt about her power to do so. This, it seems to me, gives rise to error and requires the Court now to exercise its powers under s 218 of the Act.
To this end it is necessary to know the scope of the referral, in particular whether the potential for the owners to be vicariously liable was raised before the Commissioner. If not, the Tribunal has no jurisdiction to make the order sought. If so, the discretion arises and must be exercised in the certainty that jurisdiction to make the order does exist. That jurisdictional fact should be readily determinable.
[Emphasis added].
[32] Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77 at [41]-[42].
As earlier observed, in the within proceedings, the special Justice’s jurisdiction to constitute the Court and to sentence the defendant was challenged. As the authorities above suggest, this matter cannot be appropriately determined without embarking on a full factual enquiry to establish the relevant state of facts. In the circumstances of this case, this factual enquiry was not undertaken and in the event, the appeal has been allowed on other grounds. With the consent of counsel, the question of the jurisdiction of the special Justice to constitute the Court and to sentence the defendant has not been finally determined. However, it is to be recorded that the question of whether no Magistrate was “available” in any given circumstance, may give rise to a challenge to a special justice’s jurisdiction with a consequent challenge to the validity of the orders made. The inherent uncertainty of the word “available” may facilitate such a challenge.
As earlier observed, special justices exercise judicial functions. Although those judicial functions are ordinarily limited to the Petty Sessions Division, in circumstances where there is no Magistrate “available” to constitute the Court, the Court may be constituted by a special justice. As a consequence, special justices may be empowered to make decisions and impose penalties that have the potential to impact dramatically on people’s lives. Certainty of jurisdiction in these circumstances is to be promoted.
A further issue in relation to the jurisdiction of a special justice arose on the hearing of the appeal. Section 7A of the Magistrates Court Act stipulates that the Court, when constituted by a special justice, may not impose a sentence of imprisonment.[33] A consequence of this stipulation is that like offenders facing proceedings before the Magistrates Court may be exposed to different regimes. Although practices in place in the allocation of matters within the Court may minimise this risk, the risk nevertheless exists. However it is unnecessary in these reasons to fully explore the potential for discrimination as this issue does not arise in any material way in these proceedings.
[33] Magistrates Court Act 1991 (SA) section 7A.
Consideration of the Appeal
The defendant was a young man at the time of his offence. Significantly, he was a first offender. As the antecedent report outlines, the defendant admitted his offending to police at the first opportunity, was co-operative and proceeded to plead guilty in court at the earliest opportunity. In addition, the defendant expressed his regret, and demonstrated contrition and remorse for his offending. All of these are matters which fall to be considered under section 16(b). These matters also militate against any suggestion that he would be likely to reoffend.
As earlier observed, the Court of Criminal Appeal in Lambert, unanimously set aside a conviction recorded by a District Court Judge with respect to the offence of cultivating two cannabis plants contrary to section 33K(2) of the Controlled Substances Act. As extracted earlier, the Court considered the significant effect that the recording of a conviction can have on an offender and outlined the following factors as relevant:[34]
The offence could not be described as trifling. On the other hand, it is at the lower end of seriousness for offences involving the cultivation of cannabis. The appellant is a young man. He has no prior convictions. The experience of having been taken into custody and interviewed by the police would have acted as a significant lesson to him. He was frank with the police, and has co-operated throughout. He has demonstrated his contrition by his early plea of guilty. He has taken steps to cease using cannabis by consulting with his doctor. I am satisfied that he is unlikely to offend in the future. He is likely to make a contribution to the community, and be a law-abiding citizen.
A conviction has a real potential to handicap the appellant in gaining employment. The appellant is in the final year of his apprenticeship as an electrician, and a conviction may affect his ability to work as an electrician. This is an appropriate case in which to exercise the discretion not to record a conviction.
[34] R v Lambert [2009] SASC 307 at [23]-[24].
As earlier observed, in the present proceeding the defendant was aged 19 years at the time of the offence. He was a first offender and had an otherwise unblemished record. The offence with which was charged was at the lower end of seriousness for offences involving the cultivation of cannabis. The defendant was undertaking an apprenticeship which he commenced in 2007. He had a good employment record. The defendant was contrite and remorseful, frank with the police at the earliest opportunity, entered a plea at the earliest opportunity and had learnt his lesson. There is good reason in such a case for a Court to proceed without recording a conviction.
Conclusion
In the circumstances I consider it appropriate to allow the appeal and to proceed without the recording of a conviction.
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