Regina v Alan Belord Jones and Harbour Radio Pty Ltd

[2008] NSWDC 34

Reported Decision: 6 DCLR (NSW) 362

District Court

CITATION:	Regina v Alan Belford Jones and Harbour Radio Pty Ltd [2008] NSWDC 34 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	27 March 2008
JUDGMENT OF:	Finnane QC DCJ
DECISION:	In the appeal of Alan Belford Jones: I uphold the appeal. I confirm the finding of guilt made by the learned magistrate, but pursuant to sec 10(1)(a) of the Crimes (Sentencing Procedure) Act, 1999, without proceeding to conviction I direct that the charge against Alan Belford Jones be dismissed. In the appeal of Sydney Harbour Radio: I uphold the appeal. I confirm the finding of guilt made by the learned magistrate, but pursuant to sec 10(1)(a) of the Crimes (Sentencing Procedure) Act, 1999, without proceeding to conviction I direct that the charge against Sydney Harbour Radio Pty Ltd be dismissed.
CATCHWORDS:	criminal law - sentence - previous blameless record of appellent - contempt - generaldeterrence - specific deterrence - good character of appellant - determination of appropriate sentence in lieu of imprisonment - retribution - appropriateness of sec 10 dismissal
LEGISLATION CITED:	ss. 9, 10 (1) (a) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Paris [2001] NSWCCA 83
PARTIES:	Regina Alan Belford Jones Harbour Radio Pty Ltd
FILE NUMBER(S):	07/12/0534; 07/12/0533
COUNSEL:	Ms N Mikhail for Alan Belford Jones and Harbour Radio P/L
SOLICITORS:	Ms M Carey for NSW DPP Mr J Howard of Banki Haddock Fiora for Alan Belford Jones and Harbour Radio P/L

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SENTENCE

Introduction

1 On Monday 11 February 2008, I found that the Crown had proved its case against Mr Alan Jones, Harbour Radio Pty Ltd and News Ltd. News Ltd did not wish to be heard on the penalty imposed by the learned Magistrate. Accordingly, I dismissed its appeal and confirmed the conviction and penalty.

2 The position of News Ltd and the other appellants was different. News Ltd did not contest the fact that it did not have consent to publish the name of the child witness, nor did it seek to assert that it had an honest, but reasonably mistaken belief that it was entitled to publish the name. Its only claim before me was that the Crown had not proved beyond reasonable doubt that the child was under the age of 18 years. Its submission on penalty was undoubtedly correct and proper.

The cases of Mr Jones and Harbour Radio Pty Ltd

3 I have now heard submissions on penalty on behalf of Mr Jones and Harbour Radio Pty Ltd.

Crown submissions

4 The Crown has urged that I should impose penalties on Mr Jones of a fine and a bond under sec 9 of the Crime (Sentencing Procedure) Act, 1999 (Referred to in this Judgment as sec.9 – see Appendix for full text). It has said that Harbour Radio Pty Ltd had a duty to ensure that those who broadcast on it did not breach the law. The learned magistrate had imposed a fine on Sydney Harbour Radio Pty Ltd.

5 It has sought to urge that the sentencing options available in the sentencing on 5th September 2000 of Mr John Laws, a former broadcaster, following his conviction for an offence of soliciting information from a juror, were relevant to the sentence to be imposed on Mr Jones. The Crown also submitted that Mr Jones had been convicted of contempt of court on 19th March 1993 in respect of broadcasts made by him on 9th and 10th July 1990 and thus, he could not be said to have a previously blameless record.

6 The Crown has urged that I should not impose a bond under sec. 10 of the Crimes (Sentencing Procedure) Act, 1999 (referred to in this Judgment as sec. 10 – see Appendix for full text) without recording a conviction. It has submitted that this sentence would not reflect the elements of general and specific deterrence, denunciation and retribution.

Submissions on behalf of Mr Jones and Sydney Harbour Radio Pty Ltd

7 Those representing Mr Jones and Harbour Radio Pty Ltd have submitted that I should, without proceeding to conviction, dismiss the charges pursuant to sec 10. Counsel have submitted that a conviction of Mr Jones would have permanent and far reaching consequences because of the requirement to disclose such a record when travelling and counsel has informed me that Mr Jones travels widely.

8 Submissions were made on behalf of Mr Jones that he gives generously of his time to charities and helps to raise money for those in the community who are less well off. References about his good character were tendered to the learned magistrate. All came from citizens of prominence and all were impressive. I know two of the referees personally, Mr Geoff Schuberg, a former Assistant Commissioner of Police and Mr Brett Walker S.C., a barrister. My association in both cases has been a largely professional one.

My decision

9 For reasons which I set out below, I have decided that in the proper exercise of discretion I should dismiss these cases pursuant to the provisions of sec 10.

10 It is not appropriate to impose a sec 10 Bond, because there is no reason to think that Mr Jones would again make the mistake of publishing the name of a witness in a criminal trial who was a minor, unless he was personally satisfied that it was lawful to do so. It would seem to me most improbable that he would ever again rely on what someone else had done, without checking carefully whether that person or organization was entitled to do what it had done.

Reasons for my decision

11 There are four factors to which a court must have regard when considering whether to find an offence proved but to dismiss it pursuant to sec 10. Those four factors are:

a) the person’s character, antecedents, age, health and mental condition,

b) the trivial nature of the offence,

c) the extenuating circumstances in which the offence was committed,

d) any other matter that the court thinks proper to consider.

12 Those factors are disjunctive and non –exhaustive. When a Judge comes to consider the application of sec 10, the fact that the offence is not trivial does not mean that he cannot impose a sec 10 dismissal; since that is just one of the factors (See R v Paris [2001] NSWCCA 83).

13 In the present case I take into account that informing the world of W’s name in a radio comment extending over less than a few minutes, did not materially add to the damage already caused by the actions of News Limited in publishing an article in the Daily Telegraph. In my opinion, the Daily Telegraph publication was much more serious, since it contained in written form the prohibited name and revealed it to hundreds of thousands, if not millions of readers of that newspaper. What was printed still exists in any copies of that newspaper that have been preserved.

14 Whilst it was no excuse from liability in law that Mr Jones relied on the Daily Telegraph, the fact that he did to some extent ameliorates the seriousness of the offence. I have also found that he acted honestly, and that he had a belief that what he was doing was lawful, but this belief was not based on reasonable grounds. The learned magistrate imposed penalties on him for acting dishonestly.

15 In my opinion, if he had not been acting honestly, the sentence imposed by the learned magistrate would have been one that was available in the proper exercise of discretion, since it would have been committed in clear breach of the law, but since I have come to a decision that Mr Jones is not dishonest then it is appropriate that I impose a sentence that reflects that finding.

16 I considered carefully the Crown submission that I should impose a sec 9 bond and a fine, but I do not think it appropriate to impose a fine or require Mr Jones to enter a sec 9 Bond.

17 A sec 9 bond is something which should only be imposed as an alternative punishment to imprisonment. It is not relevant unless imprisonment is a realistic option. In my opinion, imprisonment could only rarely be an appropriate sentence for an offence where the perpetrator acted honestly, but with an unreasonably mistaken belief. If imprisonment is not appropriate, then it is not appropriate to impose a sentence in lieu of imprisonment

18 The Crown also submitted that I should take into account his conviction for a contempt of court committed in 1990 and penalised in 1993. I have considered the materials provided in relation to that matter. However, this offence is far removed from the facts of that contempt of court. It had no tendency to interfere with the administration of justice and was part of a quick comment, unlike the contempt of court which arose out of interviews conducted on radio over two days.

19 The Crown also submitted that the consequences which should be visited on Mr Jones had some relevant comparison to those imposed on Mr John Laws for an offence of interviewing a juror. I do not agree. What Mr Laws did was something which threw doubt on the correctness of a jury verdict in a serious criminal trial and it thus had a tendency to interfere with the administration of justice. What Mr Jones did, could not be compared in any way with this. Mr Jones is a man of good character who has done and continues to do work which is of value to the community. I do not consider his conviction for contempt of court in 1990 derogates from this.

Reflection on sec 10.

20 The words of sec 10 make it plain as I have already said that I must consider the four factors. Mr Jones is a man of good character, but the offence is not a trivial one. It was not committed in extenuating circumstances, but at the same time he had an honest but not reasonably mistaken belief that he was entitled to publish the name. As a man of good character and someone who gives much of his time to charitable and community activities, a conviction could have an adverse effect on him which would be disproportionate to the seriousness of the offence. He is unlikely to commit any such offence again.

21 Harbour Radio Pty Ltd is entitled to the same sentence as that of Mr Jones.

For these reasons, in my opinion, the appropriate sentence which I now pronounce is:

In the appeal of Alan Belford Jones:

22 I uphold the appeal.

23 I confirm the finding of guilt made by the learned magistrate, but pursuant to sec 10(1)(a) of the Crimes (Sentencing Procedure) Act, 1999, without proceeding to conviction I direct that the charge against Alan Belford Jones be dismissed.

In the appeal of Sydney Harbour Radio:

24 I uphold the appeal.

25 I confirm the finding of guilt made by the learned magistrate, but pursuant to sec 10(1)(a) of the Crimes (Sentencing Procedure) Act, 1999, without proceeding to conviction I direct that the charge against Sydney Harbour Radio Pty Ltd be dismissed

Appendix

Crimes (Sentencing Procedure) Act, 1999

9 Good behaviour bonds

(1) Instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term.

(2) The term of a good behaviour bond must not exceed 5 years.

(3) This section is subject to the provisions of Part 8.

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:
(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and
(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

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27/03/2008	-	To reflect the finding in the previous judgment delivered on 11 February 2008, the following words are to be inserted: "I find the offence proved" in lieu of "I confirm the finding of guilt made by the learned magistrate" - Paragraph(s) Decision, 24, 26
01/04/2008	-	Typographical error - Paragraph(s) Case Header