RB v Police - [2022] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
RB v POLICE
[2022] SASC 77
Judgment of the Honourable Justice McDonald
26 July 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA
The appellant pleaded guilty to one count of contravening a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant contravened a term of the order prohibiting him from entering or being within 50 meters of the boundary of any education or care facility attended by his children.
On 19 October 2021, the appellant appeared in the Adelaide Magistrates Court. The appellant entered a plea of guilty after negotiations between the appellant’s counsel and police prosecutions that on the entry of a plea of guilty, the prosecution would not oppose that there would be no further penalty and no conviction recorded. The Magistrate ultimately recorded a conviction and imposed a fine of $1,050.
The appellant seeks to withdraw his plea guilty on the basis that there was a failure by his counsel to follow his instructions and/or because the plea was entered for reasons other than the appellant’s genuine belief in his guilt of the commission of the offence. In the alternative, the appellant appeals against his sentence insofar as the Magistrate recorded a conviction.
Held, granting an extension of time and allowing the appeal:
1.      The appeal against conviction is dismissed.
2.      The Magistrate erred in her discretion to decline to record a conviction.
3.      The appeal against sentence is allowed. The sentence is varied such that no conviction is recorded.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Magistrates Court Act 1991 (SA) s 42, s 42(4); Sentencing Act 2017 (SA) s 23, s 24, s 96, s 97; Uniform Civil Rules 2020 (SA) r 217.10(c), referred to.
Manuel v Police [2010] SASC 169; Meissner v The Queen (1995) 184 CLR 132, applied.
R v HJS (2020) 137 SASR 280; R v Murphy [1965] VR 187; House v The King (1936) 55 CLR 499; Siviour-Ashman v Police (2003) 85 SASR 23; R v Briese (1997) 92 A Crim R 75; MacGregor v Police (1995) 66 SASR 269, discussed.
Tsavalas v Police (2016) 76 MVR 298; Groom v Police (No 2) (2013) 115 SASR 446; Green v Police (SA) (1999) 29 MVR 554; R v Stewart [2010] SASCFC 72; R v Liberti (1991) 55 A Crim R 120; Police v Beukes (2011) 205 A Crim R 406; The Queen v Morse (1979) 23 SASR 98; R v Stubberfield (2010) 106 SASR 91, considered.

RB v POLICE
[2022] SASC 77
Magistrates Appeal: Criminal
McDONALD J.

On 19 October 2021, the appellant pleaded guilty to a single count of contravening a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’).
On 23 November 2021, the appellant was sentenced to a fine of $1,050 and a conviction was recorded.
The appellant seeks to withdraw that plea of guilty or, in the alternative, appeals against the sentence imposed in that he seeks to have the recording of the conviction set aside.
Background
The appellant and his wife had been married for approximately 20 years and have four children together. They separated in early 2020. The sequence of events that ultimately led to the sentence and recording of a conviction, the subject of this appeal, commenced with the acrimonious breakup of the appellant’s marriage and protracted Family Court proceedings. It was in that context that on 10 December 2020 the appellant was served with an intervention order (‘the order’) pursuant to s 31(2) of the Act. The subjects of the order were the appellant’s former wife and the youngest three of their four children. The appellant had consented to the making of the order on 9 December 2020 on a “no admissions basis”. The appellant has maintained throughout the proceedings that the only reason that he did so, was to avoid the need for his eldest son to give evidence.
Condition 8 of the order was that the appellant “must not enter or be within 50 metres of the boundary of any education or care facility attended by the protected person(s) and/or including specifically the following: 1) [Primary School A]; 2) [High School B]”.[1]
[1] Pursuant to s 33 of the Act, the names of the schools have been omitted on the basis that to disclose them may identify or tend to identify a person involved in the proceedings, a protected person by the order and/or a child of a person protected by the order.
The two schools were specifically referred to in the terms of the order on the basis that these were the schools attended by the appellant’s children in 2020. The situation came to be complicated by the fact that the youngest child graduated from Primary School A in 2020 and commenced high school in 2021. Unbeknownst to the appellant, he was enrolled at High School C.
Circumstances of the breach of the intervention order
On Monday, 31 May 2021 the appellant telephoned High School C. Initially he spoke to a member of the administrative staff before being forwarded on to the Principal. The appellant made enquiries as to whether the child attended at the school. The appellant advised that he wished to book a parent‑teacher interview with the youngest child’s teachers and for that purpose sought to confirm that the child was enrolled at the school. The Principal declined to provide that information.
The prosecution alleged that later that same day, the appellant emailed the school providing a copy of his identification again requesting confirmation of the child’s attendance at the school and again requesting to book a parent/teacher interview. That email went unanswered. The following day, Tuesday, 1 June 2020, the appellant attended in person at the school without an appointment. He met with the Principal of the school, although he did not actually enter the school grounds.
It was the prosecution case that the appellant had attended at the school in order to ascertain whether his child was enrolled there and that whilst he was not certain that it was his son’s school, he was at least suspicious that it was. In sentencing submissions in the Magistrates Court, it was put to the Court by counsel for the appellant that a further reason that he attended the school was because he was concerned about allegations that may have been made about him by his former wife, so he wanted to attempt to counter those allegations by showing some of his “credentials”. For that purpose, he had taken with him his driver’s licence, his Department of Defence identification, and a clearance card in relation to the Catholic Archdiocese of Adelaide.[2] It was accepted that a final further purpose for the appellant’s attendance was to speak to the Principal about a STEM (Science, Technology, Engineering and Maths) program that he assisted to run at Primary School A.
[2] Transcript of Proceedings, Magistrates Court, 19 October 2021 (‘Transcript 19 October 2021’) at 5.
On this occasion, the Principal again declined to provide the appellant with any information about whether his child attended at the school.
It was the prosecution case that the next day, Wednesday, 2 June 2021, the appellant again telephoned the school requesting the same information and an opportunity to participate in parent‑teacher interviews. He was denied the requested information.
On Friday, 4 June 2021 police attended at the appellant’s home address and advised him that he was to be reported for breaching the intervention order as a consequence of having attended at High School C.
Proceedings in the Magistrates Court
The matter first came before the Adelaide Magistrates Court on 31 August 2021. On that occasion it was adjourned until 19 October 2021 to enable negotiations to occur between the parties.
Between those dates there were discussions between the appellant’s solicitor and police prosecutions. As a consequence of those negotiations, it was resolved that the appellant would plead guilty, and the prosecution would not oppose that there would be no further penalty and no conviction recorded.
On 19 October 2021, the appellant appeared in the Adelaide Magistrates Court. On that occasion the appellant had legal representation and he entered a plea of guilty through his counsel. Upon entering the plea, counsel for the appellant commenced making submissions in mitigation of penalty.
Counsel for the appellant made submissions about the appellant’s personal background and the circumstances in which he had come to commit this offence. In particular, about the nature of the acrimonious marital breakup and the impact it had on the appellant. It was put to the Court that this had resulted in the appellant not seeing his children for approximately 21 months. Further, the separation also had a significant financial impact on the appellant, such that he had spent some time living out of his car. It was said that despite this, the appellant had continued to endeavour to remain involved in his children’s lives in whatever capacity he had available to him. Since the separation, the appellant had participated in virtual parent‑teacher interviews at High School B in relation to his two older children. The appellant wished to have the same opportunity with the teachers of his youngest child. It was submitted that as a consequence, the appellant made enquiries in an attempt to identify the school that the child attended. Initially the appellant made enquiries with Catholic Education Australia who declined to provide him with any further information. The appellant then contacted two other schools that he suspected the child may attend. Each of those schools advised that the child was not enrolled with them. It was submitted that it was in this context that the appellant had made contact with High School C.
Counsel for the appellant then made submissions about the events of 31 May, and 1 and 2 June 2021, that accorded with the prosecution case as previously set out.
During submissions, counsel for the appellant advised the Magistrate of the discussion that had taken place with the prosecutor:[3]
I have spoken to the prosecution. … I would note that it was at the prosecution suggestion that if he were to plead guilty on that basis they would not seek a conviction or any further penalty and that’s the submission I make in relation to how this matter should be disposed of.
[3] Transcript 19 October 2021 at 6.
In submissions, counsel for the appellant set out the impact that the recording of a conviction would have on him. There were three limbs to this submission: the effect on the appellant’s employment as a Research Scientist with the Department of Defence at Edinburgh; the effect on his ability to work with children both at a Sailing Club and teaching the STEM program; and the impediment to the appellant’s ability to travel overseas.[4] During the course of submissions the Magistrate raised whether the appellant could in any way verify the submission that was made about the impact that a conviction may have on the appellant and his employment.
[4] It was put that this was particularly important to the appellant as he had been born in Canada and had family who he wished to visit still living there.
At the end of submissions, the Magistrate indicated that she proposed to reserve her decision, and on that basis, the appellant was afforded an opportunity to obtain documentation in support of his submissions about the potential effect of a conviction on him generally and, in particular, in relation to his security clearance with the Department of Defence.
The matter came back before the Court on 23 November 2021. On that occasion counsel for the appellant tendered several documents. These were an email and an accompanying letter from the Principal of Primary School A setting out the appellant’s involvement with the STEM program and a document compiled by the appellant that set out the enquiries that he had made in an attempt to produce documents in support of the submissions made about the impact of the recording a conviction against him. These included documents that set out the efforts that the appellant had made to obtain something in writing from the Department of Defence, information about the criteria for obtaining a Working with Children Check, the criteria to be satisfied in order to obtain a visa to travel to North America and documents establishing the extent of the appellant’s involvement in the Sailing Club.
During submissions counsel for the appellant reminded the Court of the submission that he had previously made about the fact that the prosecution agreed that the matter would be resolved with no need for the recording of a conviction or any further penalty.
The Magistrate adjourned the matter until later that same day at which time she recorded a conviction and imposed a fine of $1,050.[5]
[5] The starting point was a fine of $1,500 which was reduced by 30 per cent as a result of the appellant’s guilty plea.
Extension of time
The appellant was sentenced on 23 November 2021. He filed a Notice of Appeal on 15 December 2021. It follows that the notice was filed one day out of time and consequently the appellant requires an extension of time. The delay occurred in the context of the appellant becoming unrepresented. The respondent does not oppose an extension of time on the basis that they are not prejudiced.
In circumstances where the appeal was filed one day out of time, and it is of no prejudice to the respondent, I grant an extension of time.
Fresh evidence
This appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (SA) and is an appeal by way of re‑hearing. This Court may confirm, vary, or quash the sentence or remit the matter back for a further hearing in the Magistrates Court. Pursuant to s 42(4) of the Magistrates Court Act 1991 (SA) this Court may, if the interests of justice so require, re‑hear any witness or receive fresh evidence.[6]
[6] Uniform Civil Rules 2020 (SA), r 217.10(c) also provides this Court with a discretion to hear “further evidence”.
When this matter first came before me the appellant was seeking an interlocutory order granting leave to issue a subpoena to the Department of Defence in order to obtain documents supporting the submission that he made in the Magistrates Court about the impact a conviction would have on his security clearance. The appellant appeared to have a misunderstanding of what could be achieved by issuing a subpoena. The appellant seemingly had the expectation that a subpoena could compel someone to create a document that would be suitable for his purposes.
During the course of submissions, it became apparent that the appellant was speaking to a document that he had in front of him. At my request, both counsel for the respondent and I were given an opportunity to inspect that document. It was an email exchange between the appellant and Group Captain Edward Eather, the Director, Select Incident Review, Office of Inspector-General of the Australian Defence Force that occurred between 2 February and 4 February 2022. The first email was from the appellant to Group Captain Eather. In that email, the appellant set out details of his circumstances, the fact of his conviction in the Magistrates Court and his appeal of that decision. The appellant requested the assistance of Group Captain Eather with the provision of a Defence legal letter in support of the submission about the impact that a conviction will have on his career.
The second email dated 4 February 2022, is a response from Group Captain Eather to the appellant. In that email Group Captain Eather attempted to provide the appellant with some advice, however indicated that he was not in a position to write a letter as “any decision in regard to your clearance or continued employment will be a matter for the AGSVA” (Australian Government Security Vetting Agency). He goes on to say “However, it is clear that a criminal conviction will be regarded as very seriously (sic)”. Group Captain Eather advised the appellant to consider approaching Defence legal and suggested in the alternative that the appellant request a subpoena to be issued and advised that the subpoena should be directed to [email protected]. It is of note that in that email Group Captain Eather also set out the Defence Security Policy Framework. That included a list of matters that have the potential to impact upon an individual’s security clearance. These were:
a.changes of name/identity (gender)
b.changes in significant relationships
c.changes in address or share-housing arrangements
d.entering into, or ceasing, a relationship (marriage, civil union or de facto)
e.changes in citizenship or nationality
f.changes in financial circumstances
g.changes in health or medical circumstances
h.changes in criminal history, police involvement and association with criminal activity
i.involvement or association with any group, society or organisation
j.disciplinary actions
k.drug or alcohol problems
l.residence in, or visits to, foreign countries
m.relatives residing in foreign countries
n.suspicious, persistent or unusual contacts (for information, see section C.1.5 – Contact reporting obligations)
o.any other significant changes in circumstance
This list is not exhaustive. If personnel are uncertain whether the information is relevant, report it to the line manager, Chief Security Officer or a security advisor responsible for personnel security.
In the context of providing that policy framework, Group Captain Eather made the comment that he hoped that by setting out the details in the email, it is indicative of “just how seriously these issues are taken”.
Having received the emails I formed the view that there was sufficient information contained within the email of Group Captain Eather to support the submission that the appellant sought to make. I raised the issue with counsel for the respondent, who after obtaining instructions indicated that the respondent did not take issue with the provenance of the emails and did not oppose their admission as fresh evidence on the appeal. On that basis I received the two emails as an exhibit.
I observe that even had the respondent not consented to the admission of the fresh evidence, I would have exercised my discretion to receive it. In Manuel v Police,[7] Kourakis CJ considered the test for the admissibility of fresh evidence in the context of a Magistrates Appeal:
… In my view the power of the Court to receive evidence pursuant to s 42 of the Magistrates Court Act 1991 is wide. Even though s 42 uses the words “fresh evidence”, in my view that term should be understood in its context as further evidence. The restrictive approach taken to the receipt of fresh evidence on motions for new trials should not be applied to the statutory power conferred by s 42 of the Magistrates Court Act 1991. In the exercise of the discretion given by that provision, this Court must balance the interests of the public in the finality of litigation against the interests of justice in the particular case. The diligence, or lack thereof, of the parties and their legal representatives are relevant considerations. They are, however, not determinative. …
(Footnote omitted)
[7] [2010] SASC 169 at [28].

I am satisfied that the appellant did all that was within his power to obtain documentary support for the submissions made by his counsel when he appeared in the Magistrates Court. He was in the invidious position of attempting to obtain something in writing whilst at the same time endeavouring to not put his employment in further jeopardy.
Given the apparent importance placed by the Magistrate on the need for such documentary support, the fresh evidence is of some significance to the outcome of this appeal.
Grounds of appeal
It appears that the appellant’s grounds of appeal have evolved over time as this matter has progressed. I make no criticism of this given that the appellant has no legal representation and is attempting to navigate the legal system unassisted. By the time of the appeal and upon receipt of the appellant’s supplementary written submissions filed on 15 March 2022, the appellant’s arguments could be distilled down to two main grounds.
1.An application to vacate the appellant’s guilty plea on the basis that:
a) There was a failure by the appellant’s counsel to follow his instructions and/or;
b) the plea was entered for reasons other than the appellant’s genuine belief in his guilt of the commission of the offence.
2.The Magistrate erred in exercising her discretion to record a conviction.
Application to vacate the guilty plea
Legal principles
This Court has jurisdiction under s 42 of the Magistrates Court Act 1991 (SA) to hear an appeal against a conviction where the conviction is based on a plea of guilty.[8]
[8] Tsavalas v Police (2016) 76 MVR 298; Groom v Police (No 2) (2013) 115 SASR 446 at [4].
A guilty plea is an admission to all of the essential elements of the charge.[9] The Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of free choice in the interests of the person entering a plea.[10]
[9] Tsavalas v Police (2016) 76 MVR 298 at [13] citing Meissner v The Queen (1995) 184 CLR 132; Groom v Police (No 2) (2013) 115 SASR 446; Green v Police (SA) (1999) 29 MVR 554 at [26]; R v Stewart [2010] SASCFC 72 at [45] (Doyle CJ, David and Peek JJ agreeing).
[10] Meissner v The Queen (1995) 184 CLR 132 at 141 (Brennan, Toohey and McHugh JJ).
An appellate court will only intervene where it is satisfied that a miscarriage of justice has occurred. Whilst the existence of a miscarriage of justice is the ultimate test, there are a number of circumstances that may be relevant.
The circumstances in which a court may set aside a conviction after a guilty plea may include:
a)where the defendant pleads guilty without appreciating the nature of the charges and facts alleged against them and not intending to admit guilt; or where there was a material mistake that affected the integrity of the plea as an admission of guilt.
b)where the admitted facts did not amount to proof of the offence alleged;
c)where the plea was not an exercise of the free choice of the defendant because of undue pressure, threat or inducement;
d)where the plea was based on an imprudent or inappropriate advice.
A further relevant consideration is whether, on the material before the Court, there is a real question about the guilt of the defendant.
The Courts will approach appeals to set aside a plea or pleas of guilty “with caution, bordering on circumspection”.[11] It is well established that there is a high public interest in the finality of legal proceedings, resulting in the Courts being cautious to set aside a guilty plea on appeal.
[11] Groom v Police (No 2) (2013) 115 SASR 446 at [5]; R v Liberti (1991) 55 A Crim R 120 at 122.
As a matter of logic, the further progressed the matter the more reluctant the Court should be to interfere with a plea. It is one thing to apply to vacate a plea the day after it was made perhaps in haste or in the heat of the moment. It is another to attempt to vacate a plea at a point in time after which the defendant has been sentenced and has filed an appeal. As Doyle J explained R v HJS:[12]
… considering whether it is appropriate to exercise the Court’s discretion at first instance to permit a defendant to withdraw or change his plea, much may depend upon the timing of the application. While any application to withdraw or change an apparently informed and deliberate plea of guilty should be approached with some caution, the public interest in the finality of litigation is less of a concern when the Court has not yet acted upon the plea in any significant way. …
(Footnotes omitted)
[12] (2020) 137 SASR 280 at [78].
In R v Murphy[13] the Full Court of the Supreme Court of Victoria came to consider an appeal against conviction in which it was sought to set aside a plea of guilty based at least in part on the mistaken belief of the appellant that if she pleaded guilty, she would not be sent to prison. In that context, the Chief Justice said:[14]
… there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the Court has turned out to be more severe than an accused was led to expect. The proposition that an accused, after being awarded an unexpected and unwelcome sentence following upon his plea of guilty, may then on appeal be given the opportunity of a trial by jury on a plea of not guilty with the chance of an acquittal or perhaps a lighter sentence if found guilty, needs only to be stated to be denied. …
[13] [1965] VR 187.
[14] R v Murphy [1965] VR 187 at 189.
The Court nevertheless has power to permit a defendant to withdraw his or her plea of guilty, both prior to a conviction being entered and upon an appeal against conviction. The test on an appeal against conviction is whether the circumstances in which the plea was entered involved a miscarriage of justice.[15] The appellant bears the onus of establishing such a miscarriage.
Circumstances in which the plea was entered
[15] Meissner v The Queen (1995) 184 CLR 132 at 141-147 (Brennan, Toohey and McHugh JJ), at 157 (Dawson J).
As set out previously, the matter first came before the Magistrates Court on 31 August 2021 and was adjourned to enable negotiations to occur. Those negotiations took place, and the matter then came before the Court on two further occasions before the Magistrate sentenced the appellant on 23 November 2021. The appellant was represented on each occasion. The appellant was present in Court when his counsel entered a guilty plea on his behalf and made submissions.
During the course of the appeal the appellant agreed that whilst in Court on the day the plea was entered, he knew that his lawyer was, on his behalf, admitting that he had committed the offence.[16]
Counsel’s failure to follow the appellant’s instructions
[16] Transcript of Proceedings, Supreme Court of South Australia, 29 March 2022 (‘Appeal Transcript’) at 19-20.
It was the appellant’s submission on appeal that on both occasions that submissions were made, the appellant’s counsel had failed to properly follow his instructions. At the centre of the appellant’s complaint is his belief that his counsel misrepresented his position by putting to the Court that when the appellant had attended at the school on 1 June 2021, he had done so knowing that his son went to that school.
The appellant put to the Court that the issue first arose on 23 November 2021, the second occasion that the matter had come before the Court. During submissions the following exchanges occurred:[17]
[17] Transcript of Proceedings, Magistrates Court, 23 November 2021 (‘Transcript 23 November 2021’) at 15.
HER HONOUR:   That’s not what I understood you to be saying on the last occasion. On the last occasion you said that he wanted to speak to the principal about the STEM program.
MR HORSKINS: Yes that’s the Sailing [Club].
HER HONOUR:   Sorry, it is the what?
MR HORSKINS: So the STEM program is a part of the Sailing [Club], there’s a link.
HER HONOUR:   Part of the sailing.
MR HORSKINS: The Sailing [Club] is tied in with the STEM program, sorry, I should have made that clear.
HER HONOUR:   But also to ascertain his child attended that school.
MR HORSKINS: Yes, that’s right.
(Emphasis added)
And subsequently:[18]
HER HONOUR:   No, but as I understand your submissions, he wasn’t intending to see his son.
MR HORSKINS: No.
HER HONOUR:   But he certainly intended to be where he was.
MR HORSKINS: Yes, that’s right.
HER HONOUR:   And he would have known that that was in breach of the intervention order.
(Emphasis added)
[18] Transcript 23 November 2021 at 17-18.
It was the appellant’s submission that the responses of his lawyer were not a true reflection of his instructions in that it appeared that his lawyer was conceding that on the date of his attendance the appellant had knowledge that his son attended at that school. In support of his submission that this was contrary to his instructions, the appellant relied on a statutory declaration sworn by him on 15 August 2021 (three months before he entered his plea) that reads:
[17]I confirm that, prior to 01/06/2021, I did not know my son [A] … was attending [High School C] [address deleted].
It was submitted that this mistake made by the appellant’s counsel was acted upon by the Magistrate who said the following in her sentencing remarks:
You attended the school not being certain that your youngest child attended there but you were suspicious that he did attend that school.
Your counsel advises that you wanted to speak to the Principal about the program that you ran, the STEM program, and to ascertain if your child attended the school.
The appellant argued that as a consequence of the mistakes made during submissions, his lawyer gave the Magistrate no real option other than to record a conviction.[19] It was his submission that a mistake had crept into his lawyer’s understanding of his instructions. That mistake then permeated through the various exchanges and ultimately, into the sentencing remarks of the Magistrate.
[19] Appeal Transcript at 17.
The first question that arises for consideration is whether there was in fact a failure by the appellant’s counsel to follow his instructions.
There was no dispute that in the lead up to the relevant dates the appellant was keen to remain involved in his children’s lives by participating in parent/teacher interviews. The appellant agrees that it was on that basis that on 31 May 2021 he telephoned High School C and after initially speaking to administration staff, he spoke to the Principal. The purpose of this call was to arrange for a parent/teacher interview in the event that his son was enrolled at that school. During that conversation the Principal declined to provide any information about whether the child attended at the school. The appellant also agreed that after the telephone call on 31 May 2021, he sent various documents to the school, including his Working with Children Check, in order to show that he was not a threat.[20]
[20] Appeal Transcript at 26-27.
Contrary to the prosecution case, the appellant disputed that the attendance at the school on 1 June 2021 was in furtherance of his attempts to find his son’s school, but rather he said it was in relation to promoting his STEM program. Although the appellant had no recollection of a further telephone call to the school the following day in which he repeated his requests from 31 May 2021, he did not dispute the Principal’s account that the conversation occurred.
When a comparison is conducted of the appellant’s account as compared to his counsel’s submissions, it is difficult to see that there has been any significant departure from his instructions.
In the submissions made in the Magistrates Court on 23 November 2021, the extent of the concession made by counsel for the appellant was that the appellant had attended at the school for a number of reasons. This included discussions about the Sailing Club and the STEM program, but also to see whether his son attended the school and that “he intended to do the action which was obviously in breach of the order”,[21] namely attend at that location. There was no suggestion in the submissions before the Magistrate that the appellant knew or believed that his son went to the school.
[21] Transcript 23 November 2021 at 17-18.
On the appellant’s own account his primary reason for being in contact with the school over this period was because of his plans to attempt to arrange for parent/teacher interviews in relation to his son. The appellant accepted that he had been in contact with the school for that purpose. If there was any concession made by the appellant’s counsel that was inconsistent with his instructions, it was of no particular significance.
That is particularly so in the context of the offence under consideration. The offence is one of strict liability. It did not matter whether the appellant knew his child attended at the school, or if he only had a mild suspicion. The very fact of the appellant’s attendance at the school was sufficient to establish the commission of this offence.
It is also worth noting that in her reasons the Magistrate did not suggest that the appellant had knowledge that his son attended at the school. The Magistrate sentenced the appellant on the basis that the appellant had attended at the school both to speak to the principal about the STEM program and to ascertain if the appellant’s child was enrolled at the school. There was no suggestion in the Magistrate’s reasons that the appellant knew that his son went there.
The plea was entered into for reasons other than the appellant’s belief in his guilt of the commission of the offence.
The second basis upon which the appellant seeks to vacate his plea is that he submits the plea was not entered as a consequence of him having a guilty conscience as a result of having committed the offence.
The appellant put to the Court that there were a number of circumstances that caused him to enter a plea of guilty. These were the financial pressures that the appellant was under and the practical solution that was being offered by the prosecution that would truncate the Court process and enable the appellant to walk away with no conviction and no further penalty. [22]
[22] Appeal Transcript at 20-21.
In submissions on the appeal the appellant put to the Court that he felt considerable pressure in the time leading up to the guilty plea. He said:[23]
… I would not have done that had it not been for severe financial constraints and to a degree, my state of mind in that context and that’s not an excuse, it’s only an illuminated factor to the exchange that took place and I can say, after having lived in this state of extreme financial distress for so long that there are many things that [a]re not available to me …
… in the interview room in the courtroom, where I realised practically I could not proceed with a not guilty plea and a trial and that the conviction or offer upon signing the form was my only way forward and that’s a mistake.
[23] Appeal Transcript at 21-22.
The appellant said that he was given advice that the best way forward to save money, particularly given the position that the prosecution was going to take on penalty, would be to plead guilty.[24]
[24] Appeal Transcript at 20.
It does not follow that because a defendant has been influenced to plead guilty by factors other than a belief in his or her guilt, that they should subsequently be permitted to vacate that plea. It may well be that a defendant is entirely mistaken in their views about their innocence but nevertheless plead guilty.
In Meissner, Dawson J said:[25]
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.
Is there a real question about the guilt of the appellant?
[25] Meissner v The Queen (1995) 184 CLR 132 at 157.
I turn then to the issue of whether there is a real question about the guilt of the appellant.
The offence of breaching an intervention order is an offence of strict liability.[26] As such, the only intention which must be proved by the prosecution is an intention to do the acts which constitute the breach of the order. The prosecution must prove that those acts were intentional or reckless. It is not necessary to prove that the appellant intended by those acts to contravene the order, or that he knew that his actions amounted to a contravention of the order.[27]
[26] Police v Beukes (2011) 205 A Crim R 406 at [6]-[10].
[27] Police v Beukes (2011) 205 A Crim R 406 at [6]-[10].
The case against the appellant was very strong. It was not disputed that he attended at the school and spoke with the Principal. That he was not certain that the child attended there and that his motives were not malicious, is not to the point. It is also not to the point that the appellant’s attendance was no doubt the product of some frustration at getting the run-around, nor that he had no intention of directly approaching the child.
In the event that the appellant was permitted to vacate his plea, the resultant outcome would be for the matter to be remitted back for a trial in the Magistrates Court where it is almost inevitable that the appellant would be found guilty.
In all of the circumstances, I refuse the application to vacate the appellant’s guilty plea and dismiss the appeal on ground 1. I am not satisfied that it has been demonstrated that to allow the plea to stand would result in a miscarriage of justice.
Recording of a conviction
The second ground of appeal relied upon by the appellant is that the Magistrate erred in failing to exercise her discretion to decline to record a conviction.
Before I turn to consider the exercise of the discretion to not record a conviction, I make plain that an appellate court will not interfere with the exercise of the Magistrate’s sentencing discretion unless the sentence was unreasonable, clearly unjust, or there are other grounds for saying it arose from an error of fact or law, or a failure to take into account any material consideration.[28] It is not for this Court to substitute its own view merely because if it was the original decision maker, it would have taken a different course.
[28] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); The Queen v Morse (1979) 23 SASR 98 at 100 (King CJ, White and Mohr JJ agreeing).
As was said by the Dixon, Evatt and McTiernan JJ in the often cited passage in House:[29]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
[29] House v The King (1936) 55 CLR 499 at 505.

The ultimate question arising on this appeal is whether the Magistrate failed to properly exercise her discretion in arriving at a decision to record a conviction. Accordingly, the appellant must demonstrate that the Magistrate committed an error of a type which would vitiate the Magistrate’s discretion before the Court is empowered to interfere with the order; it is not enough that the Court would have taken a different view.
The type of error necessary to be shown may be either a process error (being a specific identifiable error of fact or law), or an outcome error (that is, a conclusion that the ultimate decision was so unreasonable as to fall outside the available discretion). As will become apparent, it is my view that the latter occurred here.
Relevant sections of the Sentencing Act 2017 (SA)
Sections 23, 24 and 97 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) empower the Court to decline to record a conviction. Section 23 and s 97 can be readily put to one side as not appropriate on the facts and circumstances of this case.
Section 23 of the Sentencing Act gives the Court the power to discharge a defendant without penalty, including no conviction, in circumstances in which it “finds the offence so trifling that it is inappropriate to impose a penalty”.
I have considered whether the offending here could be described as trifling. In Siviour-Ashman v Police, [30] Doyle CJ gave consideration to the meaning of trifling in this context. His Honour observed the following:
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. …
[30] (2003) 85 SASR 23 at [25].
In my view this offence does not fall into the category of a “normal or typical example” of offences of this type. The offence occurred in unusual circumstances which place it at the lower end of the scale of seriousness. Having said that, given the importance of the protection afforded by such orders, even breaches of a more minor nature cannot be described as trivial offences.
In those circumstances this case is not an appropriate one in which to utilise s 23 of the Sentencing Act.
Section 97 of the Sentencing Act enables the Court to discharge a defendant without recording a conviction on the condition that the defendant enter into a good behaviour bond. This is not a suitable case for the imposition of a good behaviour bond. Therefore, it follows that s 97 is also not the appropriate section to utilise.
Section 24 of the Sentencing Act gives the Court the power to decline to record a conviction.[31] This section reads:
[31] Section 96 of the Sentencing Act 2017 (SA) also provides the power to decline to record a conviction. That power is, however, contingent upon the imposition of a good behaviour bond. Given that the Magistrate did not impose a good behaviour bond, and this is not an appropriate case for such a penalty, this section warrants no further consideration.
24—Imposition of penalty without conviction
If 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 assumption behind s 24 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 24 is by way of exception to the normal rule.
In deciding whether to record a conviction consideration must be given to the offender and the impact that it will have on them, as compared with the public interest inherent in the recording of a conviction. In R v Briese,[32] which was cited with approval in R v Stubberfield,[33] Thomas and White JJ discussed the tension between these competing interests:[34]
… the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department. … For present purposes it is enough to note that the making of an order under [to proceed without conviction] has considerable ramifications of a public nature, and courts need to be aware of this potential effect. …
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation …
…
The express mention … of the nature of the offence as a factor to which a court must have regard in the exercise of the discretion whether or not to record a conviction suggests that there are certain types of offences which will call for the recording of a conviction. … 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. …
[32] (1997) 92 A Crim R 75.
[33] (2010) 106 SASR 91 at [44]-[45].
[34] R v Briese (1997) 92 A Crim R 75 at 79-81.
The discretion to not record a conviction is enlivened if the Court is satisfied that the defendant is unlikely to commit such an offence again and good reason exists for not recording a conviction. In determining whether good reason exist, the Court is required to have regard to the matters set out in s 24(b) of the Sentencing Act. Once the discretion is enlivened, the Court will then consider whether it is appropriate to exercise the discretion.
I am satisfied that the appellant is unlikely to commit such an offence again. The appellant is of good character. He holds down a responsible position as a Research Scientist for the Department of Defence. He is someone who has contributed significantly to the community through his work with the Sailing Club and in the provision of the STEM program to school children. He also comes before the Courts with an otherwise unblemished record. It should also be borne in mind that the intervention order was consented to with no finding of fault on the part of the appellant.
I am satisfied that having been charged with this offence and having had to attend Court in relation to that charge on numerous occasions has had a salutary effect on the appellant, and he is unlikely to offend in the future.
I turn then to consider whether pursuant to s 24 (b) of the Sentencing Act, there are good reasons to not record a conviction. The appellant’s good character and standing in the community are also relevant to consideration of the criteria to be considered under s 24(b).
Section 24(b)(i) enables the Court to take into account any other extenuating circumstances in determining whether ‘good reason’ exists. It follows that the impact that the recording of a conviction will have on various aspects of the lifestyle and employment of the appellant falls to be considered under this section.
In her sentencing remarks the Magistrate addressed in some detail the submissions made about the impact that recording a conviction would have on the appellant. Having done so the Magistrate made the final observations:
Overall, the impact that a conviction would have on your ability to travel, retain your security classification and retain a working with children clearance has been put on the basis that a conviction creates a risk of adverse consequences rather than that it would automatically cause you to lose a working with children clearance.
The Court has not received any evidence that establishes the likelihood of those risks eventuating.
And later:
I am satisfied it is unlikely you will commit this type of offence again. I am satisfied a conviction will be a change in your criminal history that you will be required to disclose to the Australian Government Vetting Agency which may affect your ability to hold a security clearance. There is no basis for the court to conclude it is inevitable that a conviction will result in your clearance being revoked. There is no basis for the court to find that a conviction will inevitably mean you will be unable to participate in volunteer activities or you will lose your employment.
It is not clear why the Magistrate made the suggestion that it was necessary to establish that it was inevitable that certain consequences would follow. In most situations the highest that a submission against the recording of a conviction could be put would be the likelihood of an outcome.
It is also difficult to see what more the appellant could have done to obtain positive evidentiary support for the consequences that might flow from the recording of a conviction. Common sense would dictate that there was a very real risk that the recording of a conviction in these circumstances may have a significant flow-on effect into the lifestyle and employment of the appellant. I, however, now have before me by way of the email from Group Captain Eather, evidence that was not before the Magistrate that gives further weight to the submission that there is a real risk that the appellant’s security clearance and consequently his employment will be adversely affected as a result of the recording of a conviction.
In my view, in the present case, considerable weight should be attached to the possible adverse impact that the conviction may have on the appellant’s employment. This Court has consistently taken the view that jeopardising or putting at risk future employment prospects is a relevant factor to be weighed.
In MacGregor v Police, Debelle J observed:[35]
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 (1979) 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. …
[35] (1995) 66 SASR 269 at 272-273.
Taking into account all of those matters relevant under s 24(a) and (b) of the Sentencing Act, I have come to the view that the Magistrate erred in her discretion to not decline to record a conviction. Whilst no specific error can be pointed to, the end result is such that the Magistrate must have placed undue weight on those matters in favour of recording a conviction. It may be that the bar was set very high by requiring supporting evidence for the submissions made by the appellant’s counsel or looking for the establishment of “inevitable” consequences to the appellant as the result of recording a condition. Regardless, given the good character of the appellant and the circumstances of the offence, the recording of a conviction is likely to have a disproportionate detrimental impact to various aspects of his life. Further, there is now evidence before me that was not before the Magistrate that lends strong support to the submissions made on the appellant’s behalf about the impact that a conviction will have on his defence security clearance.
Orders
I order as follows:
1.The appeal against conviction is dismissed.
2.The appeal against sentence is allowed. I vary the sentence such that no conviction is recorded.