SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
TURNER v POLICE
[2016] SASC 91
Judgment of The Honourable Justice Stanley
23 June 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES AND OTHER MATTERS
On 16 January 2014 the appellant was sentenced by a magistrate after he had pleaded guilty to one count of failing to comply with a condition of a firearms licence contrary to section 21 of the Firearms Act 1977 (SA). The appellant was charged with failing to store three firearms securely in accordance with a condition of his firearms licence.
The magistrate convicted the appellant and imposed a fine of $500. In addition the appellant was required to pay a prosecution fee, a victims of crime levy and court fees.
The sole complaint on the appeal is that the magistrate erred in recording a conviction.
The appeal was instituted out of time.
Held:
1. An extension of time should be granted. It was not the fault of the appellant that the appeal was not brought within time. The appeal is not so obviously lacking in merit on its face that the court should shut out the appellant from a hearing on the merits. The principles relevant to the determination of whether to extend time do not oblige the court to consider the merits in detail (at [6]).
2. The time within which to institute the appeal is extended to 15 February 2016 (at [6]).
3. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [18]).
4. The magistrate did not overlook the requirements of s 16(a) Criminal Law (Sentencing) Act 1988 (SA). It is apparent that the magistrate addressed himself to the provisions of s 16 in deciding whether to proceed without recording a conviction (at [26]).
5. There is no error demonstrated in the approach of the magistrate in his consideration of the difficulties of recording of a conviction (at [41]).
6. It is not accepted that the magistrate failed to have regard to the cumulative effect of the factors in favour of the exercise of the s 16 Criminal Law (Sentencing) Act 1988 (SA) discretion. While there was much to be said in favour of the appellant, the magistrate was required to have regard to the fact that the appellant had pleaded guilty to a regulatory offence relating to firearms which gives rise to a particular need for general deterrence (at [42]).
7. Appeal dismissed (at [46]).
Firearms Act 1977 (SA) s 21, s…
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- TURNER v Police [2016] SASC 91
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CaseChat Overview and Summary
The appeal centred on whether the magistrate correctly exercised his discretion in deciding whether to record a conviction under the Sentencing Act. The appellant contended that the magistrate failed to consider the likelihood of reoffending, speculatively considered the effect of a conviction, and did not sufficiently weigh the cumulative effect of the appellant's background and the circumstances of the offence. The appellant referred to previous cases, Ashton v Police and Police v Kostoff, which emphasised the importance of considering the likelihood of reoffending.
The court examined the magistrate's sentencing remarks and found that, while the magistrate did not expressly refer to s 16(a) of the Sentencing Act, it was evident that he considered the appellant's character and antecedents, which would only be relevant if he was satisfied that the appellant was unlikely to reoffend. The court concluded that the magistrate's failure to expressly mention s 16(a) did not mean he overlooked it, as he had addressed the relevant considerations in his remarks. The court held that there was no misdirection or error in the magistrate's exercise of discretion, and therefore the appeal was dismissed.
The court's final order was to dismiss the appeal, affirming the magistrate's decision. The court found that the magistrate had adequately exercised his discretion by considering the relevant statutory factors and the circumstances of the case, even if he did not explicitly reference the statutory provisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The appellant submits that the exercise of the magistrate’s sentencing discretion miscarried on three grounds. First, the magistrate failed to consider whether the appellant was likely to reoffend as required by s 16(a) of the Sentencing Act. Second, the magistrate resorted to a speculative consideration of the likely effect upon the appellant of a conviction being recorded. Third, the magistrate failed to consider the cumulative effect of the appellant’s complete lack of any prior offences, his good character, cooperation with police, guilty plea and the circumstances of the offending, including geographical elements of that offence, against the regime of the Firearms Act. Consideration The appellant contends that the magistrate failed to determine whether the appellant satisfied the test in s 16(a) of the Sentencing Act and that this failure constitutes error. The appellant relies upon previous decisions of this court in Ashton v Police[24] and Police v Kostoff.[25][24] [2005] SASC 460.[25] [2014] SASC 130. In Ashton v Police[26] Debelle J held that a magistrate erred in declining to proceed without recording a conviction because he failed to address the question whether the defendant was unlikely to commit such an offence again. He held that the magistrate’s failure to address the issue at all justified the sentencing discretion to be exercised afresh. [26] [2005] SASC 460. In Police v Kostoff[27] Peek J held that in considering whether to exercise the discretion to proceed without recording a conviction a defendant was entitled to a clear finding by the court that he was unlikely to commit such an offence again. He said:[28]So it is that if a magistrate follows the correct statutory process, he or she may frequently determine that he or she does not hold the requisite opinion. But if in a particular case he or she finds that he or she does in fact hold the requisite opinion in relation to the defendant, he or she will then be in a position to approach the following exercise of the s 16(b) discretion against the background to which such a defendant is entitled – namely, a finding that the defendant is favourably differentiated from the many defendants in relation to whom the magistrate would not hold the requisite opinion. Further, it may be added that if the magistrate holds not just a bare requisite opinion that a defendant is “unlikely” to commit such an offence again but rather holds the opinion that such unlikelihood is of a high order, that too may further differentiate that defendant’s position from that of many others.[27] [2014] SASC 130.[28] [2014] SASC 130 at [18]. I accept that in his sentencing remarks the learned magistrate did not refer expressly to the provision of s 16(a). It does not follow, however, that the magistrate overlooked the requirements of s 16(a). As was said in Sims v Police,[29] the fact he did not refer to the express terms of s 16(a) does not necessarily mean he did not direct his mind to the subsection. It is apparent that the magistrate addressed himself to the provisions of s 16 in deciding whether to proceed without recording a conviction in this case. So much is clear from his sentencing remarks where, in the context of considering the submission that was urged upon him by counsel for the appellant that he should exercise the court’s discretion to refrain from recording a conviction, he referred extensively to the appellant’s character and antecedents as well as other extenuating circumstances which would enliven the exercise of the court’s discretion. There was no need for the magistrate to consider these matters unless he was satisfied, as a matter of fact, that the appellant was unlikely to commit such an offence again. If he had not been satisfied of that matter there was no need for him to consider the s 16(b) factors. So much is made clear by the Court of Criminal Appeal in Stubberfield. [29] [2000] SASC 102 at [6].