Robinson v Police
[2014] SASC 155
•20 October 2014
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 155Magistrates Appeals: Criminal
GRAY J.
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].
It was submitted by the defendant to the Chief Magistrate that she should exercise her powers to proceed without recording a conviction. The defendant had no prior convictions. In particular, the Chief Magistrate noted that the defendant had lit the fire because he had received a brochure from the Council informing members of the community that any rubbish ought to be removed from properties prior to the commencement of the total fire ban period. It was said that there were no overhanging branches in the area, that the defendant had wetted the area and that he had fire extinguishers available. It was pointed out that the temperature was not extreme, but it was accepted that there was potential for high winds. It was said, however, that those high winds did not develop until later that morning.
In the view of the Chief Magistrate, this was not an offence committed through carelessness:
The offending as Duggan J referred to in the case of Weir v Police which has been tendered to me, is described in this way:
The potential for destructive consequences resulting from breaches of this particular legislation is readily apparent …
I leave out the part that says ‘is demonstrated by the facts of this case’ because as I understand Weir the fire did get away in that case. In this case it did not. It goes on:
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.
This is not an offence committed through carelessness. This is an offence committed against a background where you knew that there was a risk, where you could have checked when you were actually on the computer, you could have gone to the website to check and where there is always a risk where the authorities had declared that fire ban day because of the potential risk through, particularly wind, a wind which was picking up at the time of the offending and was at its maximum shortly thereafter.
The Chief Magistrate had regard to several photographs of the area in which the fire was burning and noted that, had the fire spread with the wind, there was nearby vegetation to which it could easily have extended.
The Chief Magistrate proceeded on the basis that the recording of a conviction may have an impact on the defendant’s future through the need to disclose to public authorities the existence of a conviction. However, her Honour concluded:
Taking all of those matters into account I do not think that this is a case where good reason exists not to record a conviction. I am of the view that it is important in this case, with the type of offending required [sic], as referred to by Duggan J, to send a message to you and to members of the community. This is not an appropriate case for without [sic] conviction.
Submissions
On the appeal, the defendant submitted that the sentence imposed by the Chief Magistrate was manifestly excessive. As earlier noted, it was contended that the Chief Magistrate erred in failing to find that good reason existed not to record a conviction.
The defendant referred to several factors to which it was contended that the Chief Magistrate had paid insufficient regard, including the unlikelihood of the defendant reoffending, the general good character and antecedents of the defendant, the time spent by the defendant serving in the armed forces overseas, and the extenuating circumstance that the defendant was attempting to be a good citizen by obeying the Clare Council directive to reduce backyard rubbish before the fire season.
The defendant contended that the Magistrate failed to have sufficient regard to the detrimental effect that the recording of a conviction could have on the defendant’s prospects of employment. It was submitted that employment positions as a risk management consultant were highly competitive and that, all other things being equal, an applicant for a contract without a conviction would have an edge over an applicant with a conviction.
House v The King
On the hearing of the appeal, counsel for the police initially contended that in accordance with the principle of House v The King,[2] it was not an appealable error that a sentencing Judge placed too little or too much weight on one or more of the applicable sentencing considerations. In this regard, counsel referred to observations made by Kourakis CJ in Police v Chilton.[3] In that case, a single Judge of this Court had allowed an appeal against a sentence imposed by a Magistrate. The police appealed that decision to the Full Court, where Kourakis CJ made the following observations:[4]
… It is not an appealable error, in accordance with the principle in House v The King, that a sentencing Judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
Over familiarity with the decision in House v The King can at times obscure the strictness of the limited grounds for the appellate interference it prescribes. The grounds on which a discretion can be set aside are analogous to the grounds of judicial review. Neither the exercise of a judicial discretion, nor the making of an administrative decision, are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given it. The Magistrates Court is a Court of Record. Its judgments are final orders. They are not provisional opinions subject to the approval of this Court. The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King.
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.
[Footnotes omitted. Emphasis added.]
[2] House v The King (1936) 55 CLR 499.
[3] Police v Chilton [2014] SASCFC 76.
[4] Police v Chilton [2014] SASCFC 76, [17]-[19].
Kourakis CJ made similar observations in the earlier Full Court decision in Kreutzer:[5]
Section 353(4) does not authorise the Full Court to interfere with the sentence passed below whenever it has a different view to the sentencing judge about the most appropriate sentence. Neither s 353(4) of the CLCA or its predecessor were intended to abrogate the principles governing the review of sentences established in House v The King. These principles were recently applied in circumstances which demonstrate the importance of maintaining the distinction between a failure to have regard to a matter and a failure to give the matter “proper weight”. Only the former error is sufficient, in itself, to justify or interfere with the Judge’s sentencing discretion. The latter failure is not an error at all, but it may be that the “failure” ultimately results in an outcome which is manifestly unreasonable.[6] Only if an error of the kind described in House v The King is shown does the Full Court have the power to quash the sentence passed at first instance. The powers conferred on the Full Court by s 353(4) of the CLCA are premised on its satisfaction that there has been an appellable error in the exercise of the sentencing discretion.
[Footnote omitted. Emphasis added.]
[5] R v Kreutzer (2013) 118 SASR 211, 214.
[6] Bugmy v The Queen (2013) 87 ALJR 1022.
Counsel for the appellant submitted that the observations of Kourakis CJ were not to be read in the way suggested by counsel for the police. It was contended that a failure to give adequate weight could, in appropriate cases, be grounds for interfering with a discretion. It was said that this was expressly recognised by the High Court in numerous decisions commencing with Skinner v The King,[7] and including House v The King[8] itself and the later decision of Lovell v Lovell.[9]
[7] Skinner v The King (1913) 16 CLR 336.
[8] House v The King (1936) 55 CLR 499.
[9] Lovell v Lovell (1950) 81 CLR 513.
In House v The King, Dixon, Evatt and McTiernan JJ considered the basis of an appeal against a discretionary order:[10]
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King.
[Footnotes omitted. Emphasis added.]
[10] House v The King (1936) 55 CLR 499, 504-5.
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.
In Australian Coal and Shale Employees’ Federation v The Commonwealth, Kitto J made the following remarks:[15]
… So, too, there are to be found in many of the cases decided upon the wider question as to the proper attitude of a court of appeal to any judgment given in exercise of a discretion, statements appearing to limit the function of the appellate court to correcting errors of principle. Yet in that wider area it is clear that such statements are not exhaustive. I shall not repeat the references I made in Lovell v. Lovell to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King. …
[Footnotes omitted. Emphasis added.]
[15] Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 627.
More recently, in Micallef v ICI Australia Operations Pty Ltd & Anor, Heydon JA summarised the position concerning appeals against discretionary orders as follows:[16]
[16] Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, [45].
… Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a) made an error of legal principle,
(b) made a material error of fact,
(c) took into account some irrelevant matter,
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
…
[Emphasis added.]
Counsel drew attention to the recent summary of the principle in Lacey v Attorney-General (Qld),[17] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ traced the history of appeals against sentence to United Kingdom statutory provisions which were later replicated in the Australian States. Their Honours summarised the position in the United Kingdom in the following terms:[18]
Following the enactment of the Criminal Appeal Act 1907 (UK), the English courts soon established the proposition that for a convicted person's appeal against sentence to succeed there must be evidence that the sentencing judge had acted on a wrong principle or given undue weight to some of the facts proved in evidence. It was “not possible to allow appeals because individual members of the Court might have inflicted a different sentence, more or less severe”.[19] …
[Emphasis added.]
Their Honours then turned to the adoption of these principles in Australia and cited in particular the following remarks of Barton ACJ in Skinner v The King:[20]
… If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not.
[17] Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
[18] Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 579.
[19] R v Sidlow (1908) 1 Cr App R 28 at 29.
[20] Skinner v The King (1913) 16 CLR 336.
These authorities all recognise that a failure to give sufficient weight in appropriate circumstances is a basis on which an appeal court may interfere with a discretionary order. To adopt the language used by Barton ACJ in Skinner v The King,[21] as approved by the High Court in Lacey,[22] if the Judge has undervalued or overestimated some salient feature, a Court of Criminal Appeal may review the sentence imposed at first instance.
[21] Skinner v The King (1913) 16 CLR 336.
[22] Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
Counsel for the police at a later hearing acknowledged that the position outlined in the above authorities and, in particular, most recently by the High Court in Lacey v Attorney-General (Qld),[23] represented the proper approach to be taken to appeals against discretionary judgments. It was submitted that the observations of Kourakis CJ in Chilton[24] did not represent a departure from the above authorities. In particular, it was said that the observations of the Chief Justice accorded with the oft repeated statements concerning the need for the Court to be clearly satisfied that there had been a wrongful exercise of discretion by reason of the failure of the Magistrate to properly balance the relevant considerations.
[23] Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
[24] Police v Chilton [2014] SASCFC 76.
The Appeal
It was accepted by both parties that the Chief Magistrate had a discretion to proceed to sentence the appellant without recording a conviction. As discussed above, it was contended by the defendant that the Chief Magistrate had failed to give proper or adequate weight to the impact of a conviction on the defendant’s employment. This Court was invited to reach the conclusion that it should be clearly satisfied that there was a wrongful exercise of discretion by reason of the failure of the Judge to balance the relevant considerations properly. It was then said that the appeal should be allowed to avoid what was asserted to be a manifest injustice.
Earlier in these reasons, I have referred to the serious nature of the offence committed by the defendant and, in particular, to the remarks of Duggan J in Weir[25] concerning the potential for destructive consequences resulting from breaches of the legislation. With respect, I agree with and adopt the observations of Duggan J. I agree that a misunderstanding as to the law is of little consequence when considered against the above background. The same can be said as to any suggestion that the offence was committed through carelessness rather than intent. In the present proceeding, the defendant did not check whether there was a fire ban in place. He was well aware of this possibility and simply failed to make the relevant enquiry. The defendant failed to provide any evidence capable of supporting his assertion that a conviction would detrimentally affect his employment prospects.
[25] Weir v Police [2005] SASC 276.
I do not consider that it has been demonstrated that the Chief Magistrate made any error when sentencing. It was plainly open to the Chief Magistrate to proceed to record a conviction. Equally, it was open to the Chief Magistrate to decline to exercise her statutory discretion not to convict the defendant. In my view, the serious nature of such conduct as the defendant’s was recognised by Parliament when it imposed a maximum term of imprisonment of two years for the charged offence.
For these reasons, I would dismiss the appeal.
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