Robinson v Police

Case [2014] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ROBINSON v POLICE

[2014] SASC 155

Judgment of The Honourable Justice Gray

20 October 2014

FIRE, EXPLOSIVES AND FIREARMS - OFFENCES UNDER LEGISLATION DEALING WITH FIRES

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS

Appeal against sentence. The defendant pleaded guilty to an offence of maintaining a fire in the open during a period of total fire ban, contrary to section 80(3) of the Fire and Emergency Services Act 2005 (SA). The Chief Magistrate recorded a conviction and imposed a fine of $1,500.00.

Whether the sentence imposed by the Chief Magistrate was manifestly excessive.  Whether the Chief Magistrate erred in failing to find that good reason existed not to record a conviction.  Whether the Chief Magistrate failed to have sufficient regard to the various mitigating factors, including the detrimental effect that the recording of a conviction could have on the defendant’s prospects of employment.  Whether it is an appealable error to place too little or too much weight on one or more of the applicable sentencing considerations.

Held (dismissing the appeal):

1.  A failure to give sufficient weight in appropriate circumstances is a basis on which an appeal court may interfere with a discretionary order.

2.  It has not been demonstrated that the Chief Magistrate made any error when sentencing.

3.  It was plainly open to the Chief Magistrate to proceed to record a conviction.

Fire and Emergency Services Act 2005 (SA) s 80; Criminal Law (Sentencing) Act 1988 (SA) s 16 and s 39, referred to.
Weir v Police [2005] SASC 276; House v The King (1936) 55 CLR 499; Police v Chilton [2014] SASCFC 76; R v Kreutzer (2013) 118 SASR 211; Skinner v The King (1913) 16 CLR 336; Lovell v Lovell (1950) 81 CLR 513; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, considered.

ROBINSON v POLICE
[2014] SASC 155

Magistrates Appeals:  Criminal

GRAY J.

  1. This is an appeal against sentence. 

    Background

  2. On 6 May 2014, the defendant and appellant, Simon Robinson, pleaded guilty in the Clare Magistrates Court to the offence of maintaining a fire in the open during a period of total fire ban, contrary to section 80(3) of the Fire and Emergency Services Act 2005 (SA). The Chief Magistrate recorded a conviction and imposed a fine of $1,500.00. On the appeal, it was argued that the Magistrate erred in failing to find that good reason existed not to record a conviction pursuant to sections 16 and 39 of the Criminal Law (Sentencing) Act 1988 (SA).

  3. On 16…

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Robinson v Police [2014] SASC 155
Case
[2014] SASC 155
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CaseChat Overview and Summary

Simon Robinson was convicted of maintaining a fire in the open during a total fire ban. He appealed against the sentence, arguing that the Chief Magistrate erred by not finding good reason not to record a conviction. The appeal was heard in the Supreme Court of South Australia. The court had to decide if the Magistrate failed to consider relevant factors when imposing the fine. The appeal hinged on whether the Magistrate did not give sufficient weight to relevant considerations when deciding the sentence. The Court noted that the appeal court should not substitute its discretion for that of the primary tribunal unless it is clearly satisfied that the discretion was wrongly exercised. The Court found that the Magistrate did not err in failing to find good reason not to record a conviction. The Court observed that the evidence showed that the appellant had taken precautions before lighting the fire, but he failed to check if there was a total fire ban in place. The Court concluded that the fine imposed was not manifestly excessive and that the Magistrate did not fail to give sufficient weight to relevant considerations.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence. Background On 6 May 2014, the defendant and appellant, Simon Robinson, pleaded guilty in the Clare Magistrates Court to the offence of maintaining a fire in the open during a period of total fire ban, contrary to section 80(3) of the Fire and Emergency Services Act 2005 (SA). The Chief Magistrate recorded a conviction and imposed a fine of $1,500.00. On the appeal, it was argued that the Magistrate erred in failing to find that good reason existed not to record a conviction pursuant to sections 16 and 39 of the Criminal Law (Sentencing) Act 1988 (SA). On 16 October 2013, the Clare Country Fire Service attended at the defendant’s home at 9.42 am. On arrival, they observed a fire on the property, which appeared to be burning garden waste. The service used 300 litres of water to put out the fire. The police attended later and the defendant informed them that he had taken precautions before lighting the fire, that he had wetted the area, that he had fire extinguishers nearby and that he wanted to get rid of garden waste before the total fire ban period. A total fire ban had been declared from midnight on Tuesday 15 October 2013 to midnight on Wednesday 16 October 2013. A broadcast on ABC radio was made at 7.00 am on 16 October 2013 notifying the public of the ban. Information about the imposition of the total fire ban was also available on the internet. The offence was committed about one month before the commencement of the total fire ban period. The defendant, aged in his forties, worked as a risk management consultant. Impressive references were tendered to the Chief Magistrate. Personal references tendered on behalf of the defendant indicated that he had spent time working overseas, including as a safety and security advisor to television productions. He had received formal fire fighting training. In particular, between 2004 and 2006, he worked with fire issues in Indonesia. His family were long time residents in the Clare area and had owned the property since 1959. The defendant returned to live on the subject property in 2012. The Chief Magistrate was informed that an oak tree in the rear yard of the defendant’s property dropped a large amount of rubbish, which had always been burnt off out of fire season without ever resulting in a fire getting out of control. The defendant apparently had worked through the night of 15 to 16 October 2013. He acknowledged that it would have been a simple matter to have checked the website to ascertain whether the day had been declared to be a total fire ban day. The defendant further acknowledged that he made no attempt at all to ascertain whether the day was a total fire ban day. As noted above, the defendant had taken precautions before lighting the fire. This would appear to have been a recognition of the general danger of open fires in the area. Section 80 of the Fire and Emergency Services Act relevantly provides:(1)The Chief Officer may at any time of the year impose a ban (a total fire ban) on the lighting or maintaining of fires in the open air for any purpose on a specified day or days, or during any specified part or parts of a day or days, throughout the whole State, or any specified part of the State. (2)The Chief Officer must arrange to have a warning of the imposition of a total fire ban under this section broadcast from a radio station in the State. (3)Subject to subsection (4), a person must not light or maintain a fire in the open air contrary to the terms of a warning broadcast under this section. Maximum penalty: (a) for a first offence—$10 000 or imprisonment for 2 years; (b) for a second or subsequent offence—$20 000 or imprisonment for 4 years. (4) This section does not prevent the lighting or maintaining of a fire— (a) in circumstances permitted by the regulations; or (b) if the lighting or maintaining of the fire is authorised by a permit issued under this Act. (5)The Chief Officer may, by further broadcast from a radio station in the State, vary or revoke a warning broadcast under this section. …The evident purpose of this provision is to avoid the risk of the spreading of fire on total fire ban days. Major fires, particularly bush fires, have been started from the lighting and maintaining of open fires in rural areas. The consequence of these fires has been appalling, including the loss of life and property. The long term adverse effects are well documented. As Duggan J observed in Weir, when dealing with a comparable offence against section 36 of the Country Fires Act 1989 (SA):[1]The potential for destructive consequences resulting from breaches of this particular legislation is readily apparent and is demonstrated by the facts of this case. Misunderstanding as to the law is of little consequence to penalty when considered against this background. The same can be said for the suggestion that the offence was committed through carelessness rather than intent.The Chief Magistrate, in her sentencing remarks, noted the above observations of Duggan J and additionally observed:However, the point of this legislation is to ensure that fires are not either lit, or in your case maintained, on the relevant days. Those days are necessarily sometimes only able to be declared when the authorities are aware of the impending conditions. In this case clearly one of the impending conditions, that led on the night before to being declared a fire ban, was the risk through wind.[1] Weir v Police [2005] SASC 276, [14].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The High Court in Lovell v Lovell[11] revisited the proper approach of an appellate court to an appeal from a discretionary order. The decision concerned an order made concerning the custody of a child. The members of the Court considered, in particular, an argument that insufficient weight had been given to certain matters. Kitto J addressed the matter in the following terms:[12][11] Lovell v Lovell (1950) 81 CLR 513.[12] Lovell v Lovell (1950) 81 CLR 513, 533-4.In the cases on the subject a variety of expressions is to be found describing grounds upon which such a clear conclusion may be formed in a discretion case. Lord Simon, in Blunt v. Blunt, spoke of “a misapprehension of fact in that it (the primary court) either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant”. His Lordship also quoted Lord Wright's statement in Charles Osenton & Co. v. Johnston, that “if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations … then the reversal of the order on appeal may be justified”. The proposition that the appeal court will consider whether “no sufficient weight” has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully. Lord Atkin, in Evans v. Bartlam, said that if the appellate tribunal “sees that on other grounds (i.e. other than grounds of law) the decision will result in injustice being done it has both the power and the duty to remedy it”; and Lord Wright in Osenton's Case interpreted this as applying when there is a reasonable danger of an injustice. But it is to be noticed that Lord Wright prefaced his judgment with a quotation from Ormerod v. Todmorden Joint-Stock Mill Co. Ltd., in which Brett L.J. said that “This court lays down for itself the rule, which I think is the right one, that it will not exercise its own discretion unless it thinks the case is perfectly clear”; and later in his speech Lord Wright used words which I think are important: “I have already explained that, in my opinion, when the statute gives a right of appeal from an order made by a judge in exercise of his discretion and an appeal is taken, the discretion of the appellate court is substituted for that of the judge, as Brett L.J. pointed out in the passage which I have quoted above. The responsibility of deciding is then placed on the appellate court. No doubt that court starts with the presumption that the judge has rightly exercised his discretion. It must be satisfied that the exercise was wrong—‘clearly satisfied’ is the phrase used; but if the court is said to be satisfied, it must mean that it is ‘clearly’ satisfied. ‘Clearly’ strictly adds nothing, though it is useful to emphasize the strength of the presumption in favour of the judge's order being right. The appellate court must not reverse the judge's decision on a mere ‘measuring cast’ or on a bare balance”.[Footnotes omitted. Emphasis added.]Webb J concluded:[13]The appellant and respondent were cross-examined on their affidavits. There was no other oral evidence: the rest of the evidence on both sides was on affidavit. It is our duty to weigh the facts as we find them after allowing for the advantage that the learned primary judge possessed in seeing the witnesses give their evidence. If we think that his Honour gave no weight, or insufficient weight, to relevant considerations we may reverse or vary his order: Charles Osenton & Co. v. Johnston; Blunt v. Blunt and Storie v. Storie (1945) 80 C.L.R. The weight of evidence depends on rules of common sense: Lord Advocate v. Blantyre.[Footnotes omitted. Emphasis added.]Latham CJ discussed the matter as follows:[14]In Storie v. Storie it was considered by this Court that in effect no weight had been given to the claim of a parent as against a stranger to the custody of a child. The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v. Wakefield) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal. In Blunt v. Blunt Viscount Simon L.C. quotes from Charles Osenton & Co. v. Johnson the following passage:—“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way”—as well as the passage relating to giving no sufficient weight to relevant considerations.[Footnotes omitted.][13] Lovell v Lovell (1950) 81 CLR 513, 528.[14] Lovell v Lovell (1950) 81 CLR 513, 518-19.