W, L O v Police - [2008] SASC 324

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
W, L O v POLICE
[2008] SASC 324
Judgment of The Honourable Justice Layton
21 November 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL
Preliminary issue – whether prosecution able to tender on appeal the offender history report which by oversight was not before magistrate – whether it could be tendered as “fresh evidence” or “further evidence”- whether admissible in relation to alleged error of sentencing magistrate or for resentencing
Held: failure by prosecution to place offending behaviour before magistrate not relevant as to whether an error in sentencing – not “fresh evidence” or “further evidence” for that purpose – offender history admissible for resentencing – offender history taken into account when resentencing appellant.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - RELEVANT PRINCIPLES
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against decision of magistrate – 16-year-old appellant pleaded guilty to one count of unlawful possession and one count of property damage – magistrate recorded convictions and placed appellant on a 12-month good behaviour obligation in the sum of $100 – appellant contended that the recording of the convictions was in all of the circumstances manifestly excessive – whether magistrate had failed to make specific reference to, or demonstrate application of, the objects and principles of s 3 of the Young Offenders Act 1993 – whether credit given for guilty pleas and contrition – whether sentencing option of not recording convictions was considered – whether magistrate took into account an irrelevant consideration or not sentenced on the basis of the most favourable version to the appellant.
Held: appeal allowed – no indication that the magistrate had applied the objects or principles of s 3 of the Young Offenders Act – no reference to personal circumstances, strong family background, rehabilitation and employment prospects, Aboriginality, and effect of convictions – magistrate erred in failing to indicate account taken of guilty plea and contrition – magistrate appeared to have been affected by irrelevant consideration or failed to sentence on the basis of the most favourable version of events – recording of conviction manifestly excessive on information before magistrate - disadvantage to appellant in recording conviction outweighed public interest - previous offending two and a half years earlier when 13 years old - no convictions recorded and order made imposing an obligation to be of good behaviour for eight months in the sum of $100.
Youth Court Act 1993 (SA) s 22(2)(c); Young Offenders Act 1993 (SA) s 3; Criminal Law (Sentencing) Act 1998 (SA) s 16, s 39, referred to.
A, MC v Police [2008] SASC 279; R v Harris (1992) 59 SASR 300; O'Hanlon v SA Police (1994) 62 SASR 553; O'Malley v French (1971) 2 SASR 110; Day v Police (2005) 92 SASR 1; R v Frantzis (1996) 66 SASR 558;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SASC 324
Decision Date: 21 November 2008

CaseChat Overview and Summary

The case involved an appeal by the prosecution against a decision of a magistrate in relation to a 16-year-old appellant who pleaded guilty to one count of unlawful possession and one count of property damage. The magistrate recorded the convictions and imposed a 12-month good behaviour obligation in the sum of $100. The appellant contended that the recording of the convictions was manifestly excessive and that the magistrate had failed to consider the objects and principles of s 3 of the Young Offenders Act 1993. The court had to determine whether the magistrate had erred in the sentencing process and whether the penalty was manifestly excessive. The court also had to consider whether the prosecution could tender an offender history report as fresh or further evidence in relation to the alleged error of sentencing or for resentencing.

The court held that the magistrate had not applied the objects or principles of s 3 of the Young Offenders Act and had failed to indicate account taken of the guilty plea and contrition. The court found that the magistrate had been affected by an irrelevant consideration or had failed to sentence on the basis of the most favourable version of events to the appellant. The court found that the recording of the conviction was manifestly excessive on the information before the magistrate and that the disadvantage to the appellant in recording the conviction outweighed the public interest. The court also held that the failure by the prosecution to place the offending behaviour before the magistrate was not relevant as to whether there was an error in sentencing and that the offender history was not admissible as fresh or further evidence for that purpose. However, the offender history was admissible for resentencing and was taken into account when resentencing the appellant.

The court allowed the appeal and set aside the conviction. The court ordered that the appellant be discharged without conviction and that the case be remitted to the Magistrates Court for resentencing. The court ordered that the offender history report be taken into account when resentencing the appellant. The court held that the failure by the prosecution to place the offending behaviour before the magistrate did not permit the information to be regarded as fresh evidence and that the deficiency in the system of obtaining information which was reasonably available at the time, did not permit the information to be regarded as further evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In short, I consider that the magistrate erred and that the sentence imposed by him upon the appellant, on the information before him, was manifestly excessive. However, there is another issue to be considered.Fresh or Further Evidence Unbeknown to the Magistrate at the time of sentencing, the appellant had an offending history which was not placed before him due to what I regard as an oversight by the prosecution. The appellant’s offender history report contains records of the following offences: Family Conference MattersThese offences were admitted and formal cautions were administered.·One count of discharging a firearm to cause injury or damage to property committed on 22 October 2005.·One count of failing to comply with a bail agreement committed on 4 November 2005.·One count of throwing a missile to cause injury or damage to property and one count of being a minor and possessing liquor in a public place committed on 19 November 2005.Murray Bridge Children’s Court MattersThese were the first offences dealt with by a Court. ·One count of dishonesty taking property without owner’s consent committed on 30 November 2005. No conviction was recorded and there was a request to pay costs only. ·Three counts of dishonestly take property without owner’s consent committed on 29 January 2006. No convictions were recorded and community service was ordered. The Crown submitted that in deciding whether or not the penalty should be set aside as manifestly excessive, I should accept this evidence as either fresh or further evidence to be received in the hearing, not just at a point of resentencing upon error, but as to whether or not the sentence should be set aside. It was submitted on behalf of the Crown that the appeal was a rehearing, the prior offending history was a material fact in existence at the time, and that the Court had power to admit further evidence pursuant to Supreme Court Rule 292(3)(a). It was further submitted that it was in the interests of justice for this oversight to be corrected. Counsel for the appellant submitted to the contrary and referred to a decision of Perry J in Cardona v Police[20](“Cardona”). In that case, on the hearing before Perry J, the DPP sought to tender affidavit material that the appellant had a long history of offending in New South Wales, Queensland and Victoria. The explanation given for the failure to inform the learned sentencing Magistrate of the appellant’s prior convictions, was that the computer search had not revealed the interstate record. Perry J rejected that the information could be regarded as “fresh evidence”. Perry J decided in that case that the deficiency in the system of obtaining information which was reasonable available at the time, did not permit the information to be regarded as “fresh evidence”. As Perry J indicated:[21]The prosecution owe a duty to assemble all of the material which it wishes taken into account in the Magistrates Court before the hearing in that court. If it fails to do so, it cannot expect to have the opportunity of a second attempt on appeal.Clearly, this evidence was available at that time in that it could have been obtained by appropriate computer searching. The failure to obtain it at that stage cannot be cured… [20] [1998] SASC 6847. [21] Cardona v Police [1998] SASC 6847, 4.

Decision

Reasons for decision

LAYTON J

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Ratio Decidendi

Legal Principle Established

Established by: LAYTON J

This failure to advert to the request not to record a conviction coupled with the failure to refer by specific reference or by inference to the provisions of s 3(3)(d) of the Young Offenders Act, in my view, is demonstrable of a further error in the sentencing process which was likely to have affected the penalty that he ultimately gave to this appellant. Irrelevant Consideration The criticism that the Magistrate had taken an irrelevant consideration into account related to the following remarks made by the Magistrate:I don’t know who stole it but someone did. If it was you don’t ever do it again. You say you found it down the reserve. I have some difficulty in believing that. However you came into possession of it you should never have passed it on to your brother-in-law…It should never have been stolen but if it was found it should have been taken to the police. The appellant submitted that the Magistrate appeared to take into account a speculative possibility that the appellant was involved in the original offending wherein the laptop was stolen. Further, it is alleged that the sentencing remarks reveal that the Magistrate did not sentence upon the version of facts which were within the bounds of reasonable possibility, most favourable to the accused.[14] The affidavit of Eliana Truscott outlined that she had made the following submissions in respect of the circumstances of the unlawful possession offence:8.I made submissions in mitigation of penalty. In relation to the circumstances of the offending, I submitted, inter alia,i. In relation to count one, my client instructed that he found the laptop in a park hidden behind a glass house.ii. He denied any involvement in its theft and did not know how it came to be in the park.iii. He took the laptop home intending on keeping it.iv. He was unable to switch the laptop on and assumed it was broken.v. The adult offender – a relative of his named Adam Ford – visited his home. My client gave the laptop to him, believing it was worthless.vi. The appellant received no money or items in exchange for the laptop.[14] O’Malley v French (1971) 2 SASR 110. In addition, the affidavit of Paul Whitehouse indicated in [3] that he made submissions based on details in the police apprehension report, a copy of which was exhibited and marked “PW1”. Those apprehension details included that the language on the laptop computer was in Chinese. The person who owned the laptop computer was also Chinese. Legal authority indicates that even where a prosecutor does not dispute the version put forward by an offender, the Court does not have to accept it where it is not reasonably possible.[15] At the same time the Court should ordinarily act in sentencing upon the version of facts which, within the bounds of reasonable possibility, are most favourable to the accused.[16][15] Day v Police (2005) 92 SASR 1.[16] O’Malley v French (1971) 2 SASR 110. It is understandable that the Magistrate may have had doubts about the appellant having found the laptop in a park as alleged. However, the fact that the language on the computer was Chinese, may explain why the laptop had been dumped in a park. It was not, in my view, “inherently unbelievable and offended common sense.”[17] Whilst it may be unlikely, the Magistrate was required to act on the basis of the appellant’s explanation. The Magistrate’s remarks, in particular his admonition in relation to whether the appellant was involved in stealing the laptop in the first place, and his warning: “if it was you don’t do you ever do it again”, suggests that these were factors which inappropriately affected the penalty ultimately imposed. In my view the approach of the Magistrate demonstrated error in relation to the sentencing process of the appellant.[17] R v Frantzis (1996) 66 SASR 558.Was the penalty imposed manifestly excessive?