SHILLABEER v STRA - [2007] SASC 274

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SHILLABEER v STRA
[2007] SASC 274
Judgment of The Honourable Justice Debelle (ex tempore)
17 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
Appellant pleaded guilty to resisting Commonwealth public official and engaging in conduct which caused harm to Commonwealth public official – no conviction recorded and respondent entered into a bond of good behaviour – whether magistrate erred sentencing respondent – whether magistrate had failed to have regard to factors under s 19B of the Crimes Act 1914 (Cth) – magistrate erred – respondent sentenced afresh – conviction recorded.
Criminal Code 1995 (Cth) s 147.1, s 149.1; Crimes Act 1914 (Cth) s 4K, s 19B , s 20(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, referred to.

SHILLABEER v STRA
[2007] SASC 274
Magistrates Appeals

DEBELLE J. On the morning of 6 January 2006, the respondent and her husband flew into the International Terminal of the Adelaide Airport, returning from Bali. Customs officers suspected that they were concealing narcotics internally. The customs officers detained them. It appears that the respondent and her husband began to cause difficulty for the customs officers. Officers of the Federal Police were called. The respondent and her husband were taken to the same interview room. The respondent’s husband resisted the customs officers. He was wrestled to the floor and handcuffed. The respondent was asked several times to leave the interview room and go to another room. Despite several requests, she refused. A police officer escorted her from the room. While being escorted from the room, the respondent struggled with the police officer. As she was being taken from the room, the respondent spat at the police officer. Spittle landed on his face and on his jacket. Some of the spittle entered his eye. The officer was medically examined. He was found not to have been infected but there was no certainty as to that for several months. The respondent and her husband were taken to the Royal Adelaide Hospital. They were subjected to a scan which established that they were not concealing narcotics internally.
The respondent was charged in the Adelaide Magistrates Court with two offences against the Criminal Code of the Commonwealth. The first was resisting a Commonwealth public official in the performance of his duty, contrary to s 149.1 of the Criminal Code. The second was engaging in conduct which caused harm to a Commonwealth public official, intending that the conduct would cause harm, contrary to s 147.1 of the Criminal Code. Ultimately, both charges were heard on 14 May 2007. The respondent pleaded guilty to both charges.
After hearing submissions, the magistrate did not convict the respondent. Pursuant to s 4K of the Crimes Act1914 (Cth) he imposed one penalty in respect of both offences. He discharged the respondent upon her entering into a bond in the sum of $1000 to be of good behaviour for a period of two years. The magistrate also ordered the respondent to pay costs and fees totalling $263.
The appellant has appealed against the order made by the magistrate on a number of grounds. Essentially, the appeal is that the penalty was manifestly inadequate in that the magistrate failed to convict the respondent. The appellant seeks no other order than that a conviction be recorded.
There can be little doubt that the respondent was guilty of serious offending. The magistrate recognised that fact. He found that both charges were serious offences. A police officer acting in the execution of his duty should not be subjected to an assault of this kind, even if the assailant believes that he or she is being wrongly apprehended.
In deciding not to record a conviction, the magistrate had regard to the fact that the respondent and her husband had encountered a number of mishaps and other difficulties in the course of their return from Bali. Those mishaps had included the fact that credit cards had been stolen. It seems that the flight itself was particularly difficult in that neither food nor water were provided to passengers. The magistrate described their difficulties as a ‘traumatic experience’.
The magistrate had regard also to medical reports, which were tendered on behalf of the respondent. They included a report from a medical practitioner as to bruising suffered by the respondent, as well as a psychiatric report from Dr Raeside, which dealt with the effect upon the respondent of the difficulties she had encountered. However, it must be noted that that report concluded that there was no indication the respondent was unable to control her conduct by reason of any mental disorder.
The respondent is of good character. At the hearing before the magistrate, a number of references and testimonials to her character were tendered. She has no prior record. She holds a responsible position with the Department of Education and Training as a teacher. She teaches in remote areas. She deals largely with disadvantaged children.
At the hearing before the magistrate, counsel for the Commonwealth had submitted that an appropriate penalty would be the recording of a conviction and release of the respondent without sentence being passed but upon a bond to be of good behaviour pursuant to the terms of s 20(1)(a) of the Crimes Act 1914 (Cth). Counsel for the respondent had submitted that the respondent should be discharged without conviction. The magistrate described the position of the Commonwealth in these terms, ‘Prosecution has no issue with recording a conviction and discharging without further penalty.’ The expression ‘discharging without further penalty’ is not an expression to be found in s 20(1)(a) of the Crimes Act. It is instead an expression which reflects the terms of s 16 of the Criminal Law (Sentencing) Act 1988 (SA). However, notwithstanding the inaccurate description, I do not think it can be said that the magistrate misconstrued the position of the Commonwealth.
In deciding not to record a conviction, the magistrate had regard to what he called the extenuating circumstances of the offending and to the medical reports. He decided that, having regard to those factors and notwithstanding that the offending was serious, he should refrain from recording a conviction. The magistrate said:
Notwithstanding that the plea to this charge has been somewhat tardy, I detect that there is a great deal of remorse by you for your actions and I accept that to be so. There are a number of ways I have available to me to deal with you today. Prosecution has asked me to convict you for these offences. Prosecution has no issue with recording a conviction and discharging without further penalty. However, the thrust of counsel’s submission to me is that I should not record a conviction and having heard the submissions in that regard, having assessed the whole of the events which occurred on that day and reading of the medical reports which have been tendered from Dr Raeside and Dr Lovell, it has been confirmed in my own mind that I should not record a conviction for these offences, notwithstanding that they are indeed serious offences. I am not in anyway influenced or induced to go down that path by the fact that by pleading guilty today considerable court time and indeed expenses have been avoided. I approach the issue of sentence by looking at the provisions of the Crimes Act and the provisions which enable me to exercise discretion to refrain from recording conviction in circumstances which are appropriate. I think that in the circumstances there are good and proper grounds for refraining from recording a conviction. At the end of the day, I have to be satisfied that you may very well re-offend before I can proceed to a conviction. There is nothing before me which would indicate that that is likely to happen. You have no record, and this was an aberration in your life for which I detect quite considerable remorse.
It is apparent from these remarks that the magistrate has erred in his description of the matters upon which he has to be satisfied. He has again referred to the effect of s 16 of the Sentencing Act and, having referred to it, has misstated the effect of that provision.
It was not necessary for the magistrate to consider the terms of s 16 of the Sentencing Act. The relevant provisions for him to consider were the terms of the Crimes Act. In addition to wrongly referring to s 16, the magistrate has misstated its effect. Section 16 requires that the court be satisfied that the defendant is unlikely to commit the offence to which the defendant has pleaded guilty. The magistrate has stated that he has to be satisfied that the defendant may offend again. The magistrate has plainly misunderstood the effect of s 16.
Even allowing for the fact that these were ex tempore remarks, the magistrate has erred. When paragraph 7 is read as a whole, it is apparent that he has misapplied his power to release the respondent without proceeding to a conviction. He had power to do so pursuant to the terms of s 19B of the Crimes Act. However, in order to be able to do so, he had to be satisfied, among other things, that the offending was of a trivial nature. The magistrate plainly did not regard the offending as trivial. He found it to be serious offending. The magistrate has, therefore, erred in two respects. The first is in misapplying the terms of s 16 of the Sentencing Act. The second is in failing to have regard to the factors upon which he has to be satisfied under s 19B of the Crimes Act. In this respect, it is to be noted that the structure of s 19B differs from the structure of the Sentencing Act in that while the Sentencing Act provides in ss 15 and 16 two separate grounds upon which a magistrate need not record a conviction, s 19B of the Crimes Act requires a finding that the offence is of a trivial nature before a defendant can be discharged without recording a conviction. The magistrate himself found that the offending was serious.
For these reasons I am satisfied that the magistrate has erred. It is necessary to sentence afresh. Given that the offending was serious, there is no ground on which not to record a conviction. The appeal will therefore be allowed. The order of the magistrate will be varied to the extent only that the order not recording a conviction is set aside and there will be substituted therefor an order recording a conviction. The respondent has already entered into a bond. It is unnecessary in the circumstances for her to enter into a fresh bond.
The orders will therefore be:
1Appeal allowed.
2Vary the order of the magistrate made on 14 May 2007 by deleting the words ‘without conviction’ and substituting therefor an order convicting the respondent on both counts in the complaint dated 23 March 2006.
3No order as to costs.