RB v Police

Case [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.

  1. On 19 October 2021, the appellant pleaded…

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RB v Police [2022] SASC 77
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[2022] SASC 77
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CaseChat Overview and Summary

The appellant, RB, appeals against the conviction and sentence imposed by the Magistrates Court, arguing for the withdrawal of his guilty plea or, alternatively, seeking to have the conviction set aside. The case stems from an incident where the appellant breached an intervention order by approaching a school attended by his former wife and children, seeking to confirm his child's enrolment and arrange a parent-teacher interview. The court is tasked with determining whether the appellant's plea of guilty can be withdrawn or if the conviction should be set aside, and if not, whether the sentence imposed was appropriate.

The central legal issues concern the validity and enforceability of the appellant's plea of guilty, the circumstances surrounding the breach of the intervention order, and the appropriateness of the sentence imposed. The court must consider whether the appellant's plea was entered into voluntarily and with a full understanding of the consequences, especially in light of the appellant's assertion that he consented to the intervention order only to avoid having his eldest son testify. Additionally, the court must evaluate the severity of the breach and the relevance of the appellant's military career and security clearance in sentencing.

The court found that the appellant's plea of guilty was entered voluntarily and knowingly, thus denying the request to withdraw the plea. It noted that the appellant had been fully aware of the consequences of his actions when he agreed to the terms of the intervention order. The breach of the order, though serious, was not deemed to warrant a departure from the usual sentencing approach. The court considered the appellant's military background and the potential impact on his security clearance but concluded that the breach warranted a custodial sentence to uphold the integrity of the legal process and protect the protected parties. The sentence was deemed appropriate given the seriousness of the breach and the need for deterrence.

The court ultimately dismisses the appeal against the conviction and sentence, upholding the decision of the Magistrates Court. The appellant's request to withdraw his guilty plea is denied, and the conviction is confirmed. The sentence imposed is affirmed as appropriate and just under the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 defencelegal.litigation@defence.gov.au. 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 relationshipsc.changes in address or share-housing arrangementsd.entering into, or ceasing, a relationship (marriage, civil union or de facto)e.changes in citizenship or nationalityf.changes in financial circumstancesg.changes in health or medical circumstancesh.changes in criminal history, police involvement and association with criminal activityi.involvement or association with any group, society or organisationj.disciplinary actionsk.drug or alcohol problemsl.residence in, or visits to, foreign countriesm.relatives residing in foreign countriesn.suspicious, persistent or unusual contacts (for information, see section C.1.5 – Contact reporting obligations)o.any other significant changes in circumstanceThis 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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