ROBINSON v Police - [2004] SASC 271

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROBINSON v POLICE
Judgment of The Honourable Justice Nyland
7 September 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE
PLEA OF GUILTY - WHERE DEFENDANT NOT REPRESENTED
Appellant charged with behaving in a disorderly manner - appeared unrepresented in Magistrates Court and pleaded guilty - magistrate recorded a conviction and fine of $300 - appeal against recording of conviction - appellant of good character with no prior court appearances - unaware that he could challenge facts or ask that no conviction be recorded - appeal allowed - conviction set aside.
Summary Offences Act 1953, s 7(1)(a); Criminial Law (Sentencing) Act 1988, s 16, referred to.
Cooling v Steel (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279, applied.
P v Police [2003] SASC 198 (unreported), considered.

ROBINSON v POLICE
[2004] SASC 271
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against sentence. The appellant was charged on complaint with behaving in a disorderly manner at West Terrace on 8 April 2004 contrary to s 7(1)(a) of the Summary Offences Act 1953. The maximum penalty pursuant to that section is a fine of $1,250 or imprisonment for three months.
On 7 June 2004, the appellant appeared before a stipendiary magistrate in the Adelaide Magistrates Court and pleaded guilty to the charge. The learned magistrate ordered that a conviction be recorded and imposed a fine of $300. This appeal relates only to the recording of the conviction against the appellant.
The grounds of appeal contained in the notice filed on 21 June 2004 are as follows:
1.The learned magistrate erred in not offering the appellant, who was unrepresented, the opportunity to seek legal advice as he intended and did record a conviction against him.
2.The learned Magistrate erred in not taking into account that:
(a) the appellant had spent between four and five hours in custody as a result of his offending;
(b)the appellant was a first offender;
(c)the appellant’s co-accused were discharged without penalty or a recorded conviction;
and in those circumstances a fine of $300 and a recorded conviction were manifestly excessive.
The circumstances relating to the offence which were outlined to the magistrate are set out in the affidavit of Carolyn Prince, the police prosecutor, sworn 28 June 2004. She told the magistrate that the incident occurred in the car park of the McDonalds Restaurant on West Terrace, Adelaide, at about 2.05am on 8 April 2004. Police attended at the car park and spoke with two groups of people, one of which consisted of three males, namely, the appellant, Luke Duffy and Daniel Nelson. One of the officers instructed Duffy and Nelson to leave the area. After the request had been repeated numerous times, the two walked a short distance away, and one of them was arrested.
The prosecutor said that the appellant, who was still in the McDonalds car park, said to the police officer “This is fucking bullshit” and “Why the fuck did you lock him up? You’re piss weak.” The officer cautioned the appellant in relation to his language, following which the appellant said, “What fucking language? What offence?” and the officer replied, “Disorderly behaviour”. The appellant then shouted, “Ha, the judge will fucking laugh at that bullshit”. He then moved closer to the police officer and appeared to challenge him to a fight. The prosecutor said the officer noted that the appellant was unsteady on his feet, and had slurred speech and blood-shot eyes, indicating the effects of alcohol. The appellant was arrested and taken to the City Watch House, where he was charged with disorderly behaviour.
Duffy and Nelson were each charged on separate complaints with failing to cease loitering. The appellant, Duffy, and Nelson were required to attend in court on the same date. Each of the three men appeared in person. Nelson’s case was called on first. He pleaded guilty to the loitering charge and was discharged without conviction or penalty.
The appellant’s case was called on next. After the appellant pleaded guilty, the prosecutor informed the magistrate that the appellant had no prior offending history. According to the prosecutor, the magistrate asked the appellant whether he had anything to say in relation to the matter, but she does not remember the appellant’s response. The magistrate then convicted the appellant and fined him $300. Although no sentencing remarks are available, the prosecutor said she recalls the magistrate making a comment that he “wasn’t laughing”.
Finally, Duffy’s case was called and he too entered a plea of guilty. No conviction was recorded against him, but he was fined $80.
On the hearing of the appeal, the appellant was represented by Mr Miller of counsel, and Ms Lee-Justine appeared as counsel for the respondent. Apart from entering a plea of guilty, the appellant did not make any submissions to the magistrate with respect to the factual circumstances outlined by the prosecutor. On the hearing of the appeal, however, Mr Miller said that the appellant had not agreed with those facts, but had not been aware that he could challenge them, nor ask the magistrate not to record a conviction against him.
The appellant’s version of what occurred is set out in an affidavit sworn by him on 29 July 2003. He said that although he and his friends had been drinking, they were not drunk. He agreed that following an argument with some males at McDonalds Restaurant, the police attended and asked his friends to leave so they could talk to him. Whilst waiting for them to talk to him, the appellant noticed that Nelson had been arrested, and he therefore asked the police officers what was going on. The appellant admits that he became abusive, and was arrested and taken to the City Watch House. On the way to the Watch House, Duffy was also arrested. The appellant said that having been processed, he spent between four and five hours in a cell at the Watch House before being released on bail.
The appellant said that when the magistrate asked him what he had to say, he told him that it was out of character, that it wouldn’t happen again, and that he was sorry. He told the magistrate that he was an apprentice cabling engineer earning about $400 a week.
The steps to be followed by a court when taking a plea from an unrepresented defendant are set out by Wells J in Cooling v Steel[1], helpfully paraphrased by Sangster J in Ivanoff v Linnane[2] as follows (relevantly, at 282-3):
“(i)Ensuring before a plea is taken that the defendant is told, briefly and simply, what he is charged with …
(ii)Making the defendant appreciate that that plea is a matter for his own independent decision, that he is entitled to legal advice or representation, and to a reasonable adjournment to seek legal advice or representation …
(iii)If the question of bail arises, making the defendant clearly aware of what bail is, that he can apply for bail, what matters a court takes into account, and that he can make representations …
(iv)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 power to disqualify from holding or obtaining a driving licence, or order compensation, or direct forfeiture of property, or order imprisonment.
(v)On a plea of guilty the defendant should have it made clear that he may put matters in mitigation by statement or on oath (especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material.
(vi)On a plea of guilty, before the prosecutor places the facts before the court the defendant should be informed that he is entitled to dispute or comment on the facts about to be alleged (including previous convictions).
(vii)If facts are disputed, the defendant should be given the opportunity to support his version by sworn evidence and/or calling witnesses, or (if appropriate) consideration should be given to treating the defendant’s contention as to the facts as a plea of ‘not guilty’.”
[1] (1971) 2 SASR 249 at 250-1
[2] (1979) 20 SASR 279
Finally, this was summarised by Wells J, in Cooling v Steel (at 251) as:
“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.”
In this case, given the nature of the charge against the appellant, and the appellant’s apparently spontaneous plea, the learned magistrate may have thought it unnecessary to canvass the appellant’s rights and duties with him. That may also explain the lack of reasons given by the magistrate for recording a conviction against him.
Although the appellant and his companions were charged on separate complaints, and Duffy and Nelson were charged with a different offence, all of the charges arose out of the one incident and to that extent the three of them could have been regarded as co-offenders. The appellant’s part in these events was, however, greater than that of the other two and that was appropriately recognised by the difference in monetary penalty imposed with respect to each of them.
The appellant was, however, unrepresented. Having been dealt with immediately after Nelson, who received neither conviction nor penalty, it is not surprising that the appellant also anticipated that no conviction would be recorded against him. If the magistrate had alerted the appellant to the possibility that he was going to take a different approach with him, it would have enabled the appellant to have the matter adjourned to obtain legal advice and thereafter, if so advised, to dispute the version of facts given by the prosecutor. He would also have had the opportunity to place evidence before the learned magistrate by way of mitigation which might have enabled the magistrate to proceed without recording a conviction.
Section 16 of the Criminal Law (Sentencing) Act 1988 empowers the court to proceed without recording a conviction if 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.”
In this case, although the offence could not be regarded as “trifling”, the appellant had no prior offending history and was in employment. In his affidavit on the hearing of the appeal, the appellant said :
“I didn’t know I could ask that no conviction be recorded. This was important to me as I didn’t want my employers to know what I had done and also we sometimes require security clearance at work. An example of this is the company I work for has a job at Murray Bridge Police Station. I am concerned that if I am sent to work there the police will refuse to clear me because of my conviction.
At no time do I recall the magistrate telling me I should seek legal advice. I am sorry for what I have done and the impact it may have on my employment. I am certain I will not do anything so stupid again.”
The matters referred to in the appellant’s affidavit go no further than raising a possibility of the appellant’s employment being affected. Nevertheless, this was a relevant matter to put before the magistrate, and it may have persuaded him to exercise his discretion in a different manner. The impact of a conviction even for such an offence as this cannot be ignored. As Gray J said in P v Police[3] (when dealing with a conviction recorded against a young offender):
“A conviction remains with an offender for life. It can hamper employment prospects, prevent the undertaking of certain types of employment, create difficulties when entering countries and provide restrictions in other ways.”
[3] [2003] SASC 198
In my opinion, the magistrate erred in not advising the appellant of his rights before recording a conviction against him. As a result, he was unaware of his ability to challenge any of the factual matters put before the magistrate and was unaware of his right to have the matter adjourned so he could take legal advice to enable him to put matters in mitigation. It is therefore open to me to exercise the sentencing discretion afresh.
In this case, the appellant had no prior offending history. He was a young man in employment which could possibly be affected by a conviction being recorded against him. He was contrite. He had as a result of his arrest been locked up in a cell for between four and five hours, which must have been a sobering experience for him.
Taking into account all of these matters, I consider that there is good reason not to record a conviction against the appellant. In my opinion, the appeal should be allowed. The conviction imposed by the magistrate will be set aside, but the sentence with respect to the fine of $300 and other costs will be otherwise affirmed.