Smartt v Police No. Scgrg-98-617 Judgment No. S6739

[1998] SASC 6739

SMARTT v POLICE

Magistrates Appeal

Criminal

Debelle J

Appeal against conviction and sentence 

The events leading to this appeal arise out of an unfortunate incident at a swimming pool in a caravan park during January 1998. 

The appellant was staying in the caravan park with his wife and four children.  On Sunday, 11 January he was in the swimming pool with his twelve month old daughter.  He was introducing her to the water in the swimming pool.  He was standing at the edge of the swimming pool and his child was on the steps of the swimming pool.   Some young boys were chasing each other around the pool and splashing one another.  They were asked to stop that conduct, which, it seems, was a breach of the rules regulating the use of the pool.  However, the boys continued their conduct and in the course of that accidentally splashed the appellant and his baby.  The appellant was annoyed by this conduct.  He grabbed one of the boys and pulled him into the water.  The boy was unable to swim.  The noticed that and immediately retrieved him from the water, placing him on the side of the pool. 

The boy was aged seven.  He was very upset by the incident.  According to the facts as related by the prosecutor to the magistrate he was very upset, scared and unable to speak for a few minutes.  He was still shaking when interviewed by the police later that day. 

There was a dispute between the facts alleged and those given to the magistrate in a detailed account provided in a letter written by the appellant.  According to the police the appellant had put his 12 month old baby down and then had grabbed the victim and dragged him into the water so that he was fully submerged.  According to the appellant he simply pulled the boy into the water and the boy was not fully submerged, although it was apparent to him that he could not swim. 

There is not a great deal of difference on the facts.   On either view the boy had been pulled into the water.  The appellant did not know whether the boy could swim.  He was not entitled to assume that he could.  It was, as the magistrate said, a gross over-reaction on his part and, given that he did not know whether the boy could swim, it was stupid and dangerous for him to pull him into the water.   That, of course, must be weighed against the fact that the appellant was immediately beside the boy and on seeing that he was unable to swim immediately put him back on the side of the pool.  There was, therefore, no real danger to the boy.  There was no physical injury.  At most he would have suffered a severe fright. 

Counsel for the appellant submitted to the magistrate that in all the circumstances it would be appropriate not to record a conviction.  It was submitted that the appellant was contrite and that the circumstances did not warrant a conviction.  Reference was made to the fact that relatively shortly after the incident occurred the appellant had apologised to the boy's mother.  It was pointed out also that he had made frank admissions to the police.  The magistrate was not persuaded by that and recorded a conviction and in addition ordered that the appellant pay a fine of $1,000. 

The appellant appeals against both the conviction and the amount of the fine alleging that in all the circumstances the penalty is manifestly excessive. 

I deal first with the question whether it was appropriate for the magistrate to have recorded a conviction. 

The factors to which the magistrate should have regard are recited in s.16 of the Criminal Law (Sentencing) Act. On this appeal the appellant referred to some facts which were not before the magistrate. The appellant carries on a business as a computer programmer. He is required regularly to work in the United States of America. I find that the conviction would have serious consequences. It is unlikely to prevent his obtaining a visa to enter the United States on business, but it would impede, if not prevent him obtaining a visa to remain there for the purpose of working in the course of his employment. It has been submitted that the conviction would jeopardise his ability to work for the Department of Defence, the Department of Social Security and Australian Custom Services. I do not think that that has been established.

In addition to the fact that the appellant regularly goes to the United States, I have regard to the following other facts which were before the magistrate.  These are all facts which weigh in the appellant's favour.  First, he took immediate action to recover the child and return him to safety.  Secondly, he apologised relatively soon after to the child's mother.  Thirdly, he is contrite and regrets his actions.  Fourthly he is aged 41 years and has previously been of good character.   He has no prior record.  He is married with four children.   He is in employment as a computer software engineer.  Fifthly, he enjoys a good reputation.  The magistrate had before her references from at least six persons.  He has for a long time been a regular church goer and the references included references from a minister of religion.  In shor,t here is a man who in his 41 years has had no prior conviction. He was before the court in respect of what can only be described as a thoughtless over-reaction to a situation where he had been annoyed that a child had acted in a way which was interrupting his dealing with his own child when introducing her to the water in the pool.  It was plainly a spur of the moment response and one which, as I already mentioned, did not place the victim in any real danger. 

These factors go a long way towards justifying the exercise of the discretion not to record a conviction. Section 16 of the Criminal Law (Sentencing) Act required the magistrate to have regard to whether the appellant was likely to commit the offence again, to his character and antecedents, and to any other extenuating circumstances. It is also relevant to have regard to whether the offence is trifling. Plainly the magistrate did not regard the offence as trifling, and she was entitled to reach that view and I would not interfere with it.

The criminal law exists for the protection of the public and the protection of the public must remain the first concern of the court.  But public concern about crime should not displace the fundamental concepts of justice and mercy which should animate criminal tribunals of civilised nations.  Whilst the protection of the public is the first concern of the courts if, consistently with that, the courts can in their compassion assist another human being to avoid making a ruin of his life, they ought to do so.  These observations will immediately be recognised as those of King CJ in Yardley v Betts (1979) 22 SASR 108 at 112 to 113. Many years earlier like observations had been made by Napier CJ in Webb v O'Sullivan (1952) SASR 65 at 66 where his Honour had said:

“The courts should endeavour to make the punishment fit the crime and the circumstances of the offender as nearly as may be.  Our first concern is the protection of the public, but subject to that the court should lean towards mercy.   You are not to award the maximum which the offender will warrant, but rather the minimum which is consistent with the due regard for the public interest.”

In refusing to accede to the submission that a conviction should not be recorded the magistrate has, I think, failed to have sufficient regard, or perhaps any regard to the circumstances of this offender and to consider whether in all the circumstances a merciful approach to him would, notwithstanding the seriousness of the offence, justify the course which the magistrate had been asked to take. 

I acknowledge that the magistrate was no doubt busy and had a heavy list to discharge, but the reasons of the magistrate do not disclose any consideration of the factors to which I have referred.  In addition there is the further factor which is before me, namely, that a conviction would seriously impair the appellant's ability to pursue his vocation and work from time to time in the United States of America. 

In all the circumstances, I think that a conviction for this thoughtless and gross over-reaction would be a punishment out of proportion to this offence.  I do not for one moment mean to suggest that the offence was not serious.  But, having regard to the matters to which I have referred, particularly as there is no injury and the boy was immediately retrieved from the pool, the penalty in the form of a conviction, is an excessive penalty. 

Here is a man who, given his previous record and his reputation, is unlikely to commit an offence again.  It is apparent that, from the material which was before the magistrate, he is very aware of the seriousness of his offending.  His character and his age and general family circumstances point to the fact that it is appropriate, in all the circumstances, not to record a conviction. Added to that is the jeopardy to his employment likely to arise from the recording of a conviction.  I therefore allow the appeal for the purpose of setting aside the order of the magistrate convicting the appellant and, in lieu thereof, order that a conviction not be recorded. 

The court should not interfere with the exercise of a discretion, except on well-settled grounds which are noted in House v The King (1936) 55 CLR 499 and which were restated in this Court in Uznanski v Searle (1981) 26 SASR 388 at 389. It is not sufficient if the appeal court were to exercise its discretion in a different way. However, for the reasons already expressed, I believe that the exercise of the learned magistrate miscarried in that she allowed the seriousness of the offending to weigh too heavily and has not had sufficient regard to the circumstances of this offender. For those reasons, I think it is appropriate that this court review the exercise of the discretion.

I turn to the question of whether the fine of $1,000, in all the circumstances, is manifestly excessive.  The fine is plainly a very substantial one.  Although this was a serious offence, it was not so serious as warrants a fine of this magnitude.  Penalties of that magnitude are ordered in respect of offences far more serious than this.  I repeat, because it requires the emphasis, this was a relatively serious offence.  The appellant did not know whether the boy could swim.  On the other hand, the boy was immediately retrieved from the pool by the very person who had placed him there.  In all the circumstances, I would have thought that a fine of $500 was quite an adequate penalty for this offence. 

For these reasons, the appeal will be allowed.  There will be an order setting aside the recording of a conviction.  There will be an order reducing the fine to $500.  The order as to other penalties will stand so there will be a total fine and penalty of $617.  Time to pay, 3 months. 

I order that the respondent pay the appellant's costs in the sum of $150, and disbursements.