Sean Michael McGlynn v SA Police No. 4180 Judgment No. SCGRG 93/1377 Number of Pages 2 Criminal Law and Procedure (1993) 61 Sasr 277

[1993] SASC 4180

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - unrepresented defendant in magistrate's court - Plea of guilty by unrepresented defendant - imposition of a prison term without alerting the defendant to the possibility that such a penalty might be imposed and without affording to the defendant an opportunity to secure legal representation - sentence quashed - observations as to the importance of Magistrates explaining the position to unrepresented parties and giving to them an opportunity to obtain the services of a lawyer. Kessling v Commane
(1975) 10 SASR 284 and Kenchington v Shenherd (unreported) (Judgment No 2051) Olsson J 17.1.90, discussed.

HRNG ADELAIDE, 14 September 1993 #DATE 14:9:1993
Counsel for appellant:     Mr A. C. Button
Solicitors for appellant:    Aboriginal Legal Rights
   Movement
Counsel for respondent:     Ms K. Parouchais
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 PERRY J This is an appeal by the defendant against the sentence imposed upon him in the Holden Hill Magistrates Court following his plea of guilty to a charge that on 7 March 1993 at Hillcrest he stole brick pavers together of the value of $183, the property of Adelaide Kerbing Pty Ltd. 2. The appellant was charged together with two other defendants. All three were unrepresented and all three pleaded guilty when the matter came on for hearing in the Court below. The other two defendants were fined, in each case $250. The appellant, however, was ordered to be imprisoned for two months. The order of imprisonment was suspended upon his entry into a bond for a period of 18 months in the sum of $200 to be of good behaviour and to perform 40 hours of community service. 3. The appellant has filed an affidavit in which he indicates that he appeared without a lawyer, that the learned Magistrate asked him if he wished to have the matter dealt with, to which he responded affirmatively, whereupon he pleaded guilty. He deposes to a belief that he thought he would be given a fine and he states: "If I had been warned I would have asked for a remand to get a lawyer." To his surprise he was sentenced to two months imprisonment suspended on the terms which I have already indicated. 4. It appears that the appellant has a criminal record. There is, however, no affidavit from the prosecutor indicating what facts were put to the Court and neither has a copy of the antecedent report relating to the appellant been put before this Court. 5. It is clear on the authorities that the attention of the appellant should have been drawn to the possibility that he might be sent to prison, and he should have been afforded an opportunity to obtain legal representation if he so desired. See, for example, Kessling v Commane (1975) 10 SASR 284 and Kenchington v Shepherd (unreported) (Judgment No 2051) Olsson J 17 January 1990. 6. It must be emphasised by this Court, for the benefit of Magistrates and Justices, that giving an opportunity to obtain legal representation is a serious matter, and a failure to afford to a defendant an opportunity to obtain legal representation when there is a possibility of imprisonment being imposed will generally result in a miscarriage of justice. 7. There is nothing in the course of these proceedings to suggest that there was other than such a miscarriage in this case. 8. Quite properly, Ms Parouchais for the respondent, has conceded that the proceedings were irregular, and it is by consent that I order that the sentence be quashed and that the matter be remitted to the Holden Hill Magistrates Court so that the appellant can be re-sentenced on the earliest available date. 9. Notwithstanding that the order allowing the appeal is made by consent, I have seen fit to make the observations which I have in an endeavour to ensure that Magistrates Courts bear in mind the matters to which I have referred and endeavour to avoid the situation which arose in this case.