THOMPSON v Police - [2004] SASC 378

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
THOMPSON v POLICE
Judgment of The Honourable Justice Besanko (ex tempore)
18 November 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against a decision of a Magistrate to record a conviction - where the appellant pleaded guilty to damaging property - where the appellant asked the Magistrate to impose a penalty without recording a conviction pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 - where the Magistrate recorded a conviction and ordered that the appellant perform 200 hours of community service and pay compensation - whether the Magistrate erred in concluding that good reason did not exist for not recording a conviction - appeal dismissed.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 85; Criminal Law (Sentencing) Act 1988 s 16, referred to.
Dinsdale v The Queen (2000) 202 CLR 321, considered.

THOMPSON v POLICE
[2004] SASC 378
Magistrates Appeal

BESANKO J: This is an appeal from a sentence imposed by a Magistrate. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
The appellant was charged with intending to damage the property of another, or being recklessly indifferent as to whether such property was damaged and without lawful authority to damage such property and knowing that no such lawful authority existed damaged the property of another. This is an offence under s 85(3) of the Criminal Law Consolidation Act 1935. The particulars of the charge are that the appellant damaged a motor vehicle and emergency light bar which was the property of the South Australian Police. The damage to the vehicle totalled $4785.69 and the maximum penalty for the offence was imprisonment for three years.
The appellant pleaded guilty to the charge at the first available opportunity.
The Magistrate recorded a conviction. He did not think it was a case in which a sentence of imprisonment was appropriate. He ordered that the appellant perform 200 hours of community service within a period of 18 months, and that he obey the lawful directions of a community corrections officer. He ordered that the appellant pay compensation of $4785.69.
The Magistrate was asked by the appellant not to record a conviction. The Magistrate had the power to impose a penalty without recording a conviction, by reason of s16 of the Criminal Law (Sentencing) Act 1988. That section provides:
“16.   Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion –
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to –
(i)    the character, antecedents, age or physical or mental condition of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
The Magistrate said that he was not persuaded that good reason existed for refraining from recording a conviction. That decision by the Magistrate is the principal issue on the appeal.
I turn now to state briefly the circumstances surrounding the offending. The appellant and a friend went to dinner on the evening of Saturday 17 April 2004. Each consumed a considerable quantity of alcohol during the course of the dinner. At about 11.13 pm, the vehicle in which the appellant was a passenger was stopped by the police. The appellant’s friend, who was the driver of the vehicle, was asked to submit to an alco-test. A positive result was recorded. Two police officers took the appellant’s friend to the Adelaide Police Station to conduct a breath analysis. A marked police vehicle was left at the place where the appellant and his friend had been stopped, and the appellant remained at the scene. The appellant then damaged the police vehicle. The damage consisted of a large dent in the roof, the right side of the roof-mounted emergency lights were smashed, and there were three dents and scratches on the passenger’s side doors.
Witnesses at the scene said that the appellant climbed onto the roof of the vehicle and attempted to pull off the emergency light bar and then got back down, found a wooden garden stake and proceeded to smash the lights on the roof and hit the doors.
The appellant was interviewed by police officers the following day. He made full and frank admissions to the police officers. He said that he was under the influence of alcohol at the time he committed the offence. He was contrite and apologetic.
The principal issue on the appeal is whether the Magistrate erred in concluding that good reason did not exist for not recording a conviction. It must be remembered this is an appeal from the exercise of a discretion. That means the Magistrate’s decision must stand unless there was an error of the relevant type. The principles as to the type of error which must be shown are well-known. I refer to House v The King (1936) 55 CLR 499 at 505 and Dinsdale v The Queen (2000) 202 CLR 321 at 324 to 325.
I turn now to consider the Magistrate’s remarks on penalty. The Magistrate noted that the appellant had pleaded guilty to the charge. He set out the circumstances surrounding the offending. He noted that when interviewed by police officers the appellant made full and frank admissions and that he was remorseful and contrite. The Magistrate noted that the appellant was a man with no previous convictions. He noted that the appellant was 40 years of age, and that he held a very responsible and very stressful job. The Magistrate was of the view that what happened was clearly out of character, and that the fact that the appellant was affected by alcohol explained rather than excused his criminal conduct. The Magistrate made reference to a letter from the General Manager of Event Personnel Australia Pty Ltd in which it is said that if the appellant was to get some sort of criminal record, it would compromise his ability to carry out all his duties as sometimes he might need access to the sensitive areas that required a police clearance. The Magistrate noted that the offence was unpremeditated and that the appellant was affected by alcohol at the time. On the other hand, he noted that the extent of the damage was considerable. The Magistrate said that having regard to the damage, the vehicle could not have been used in the course of police duties and that in the event of an emergency the vehicle would have been unavailable for use. There was a challenge to this finding by the appellant but read in context, I think it was a reasonable inference for the Magistrate to draw.
The Magistrate referred to the fact the appellant was in a position to pay compensation in full within seven days.
The Magistrate accepted that the appellant was unlikely to commit an offence of this nature again. The Magistrate then referred to some matters in favour of recording a conviction. He referred to the fact that the recording of a conviction is, in itself, an element of punishment and may operate as a personal and general deterrent. He also referred to the fact that a decision not to record a conviction may have considerable ramifications of a public nature, and he referred to the fact that there are persons who might have a legitimate interest in knowing the truth of such matters.
The Magistrate referred to the arguments in favour of not recording a conviction. He noted that the conviction remains with an offender for life, that it can hamper employment prospects and that it can create difficulties when entering countries and that it can create restrictions in other ways. He said that a conviction should not be imposed without first considering the long-term implications to the individual involved. The Magistrate referred to the need for general deterrence as well as personal deterrence. Having identified the above matters, the Magistrate weighed them up and said that he was not persuaded that good reason existed for refraining from recording a conviction.
When considering the penalty to be imposed, the Magistrate said when he heard the facts alleged by the prosecutor he considered that imprisonment was “very much an option”. However, he said that having heard from counsel for the appellant about the appellant’s personal circumstances, he was prepared to accept that prison was not appropriate. On appeal those observations were criticised. I do not think there is any substance in the criticism. The Magistrate’s provisional view is understandable, and it is clear that in reaching his conclusions he weighed up the relevant matters.
The Magistrate’s remarks on penalty are detailed and careful. He did not act upon a wrong principle, nor did he allow extraneous or irrelevant matters to guide or affect him. He did not fail to take into account a material consideration. His conclusion that he was not persuaded that good reason existed for refraining from recording a conviction is not unreasonable or plainly unjust.
Even if I had considered that there were grounds to set aside sentence, the same result would follow. I would have to re-sentence the appellant and in doing so, I would receive the evidence of the appellant’s criminal record, (see “TC1” to the affidavit of Mr Tim Curtis sworn on 11^th November 2004) and I would record a conviction as the Magistrate did.
The appeal must be dismissed.