Wade v Police No. Scgrg-97-1411 Judgment No. S6458

[1997] SASC 6458

WADE  v  POLICE

Perry J   (ex tempore)

The appellant appeals against the sentenced imposed upon him in the Magistrates Court sitting at Adelaide following a plea of guilty to a charge that on 5 May 1997 at Adelaide, without proper authorisation, he operated a restricted access computer system contrary to s44(1)of the Summary Offences Act 1953.

On the first hearing of the complaint, the appellant did not appear before the court.  A conviction was recorded in his absence.  As it was a matter upon which there had been an application for compensation, the learned sentencing Magistrate then stood the matter over pending a notice which was then given to the appellant, advising him that the hearing of the complaint had been adjourned for the purpose of enabling him to attend and make submissions on that application.

At the adjourned hearing the appellant was represented by counsel who made submissions on his behalf.

The learned sentencing Magistrate then confirmed the conviction and proceeded to impose a fine of $400, which, together with court fees and costs, came to a total of $517. Pursuant to s53 of the Criminal Law (Sentencing) Act 1988, he ordered payment of compensation in the agreed sum of $190.

In the notice of appeal, the appellant complains that the learned sentencing Magistrate erred in recording a conviction against the appellant and, in particular, in failing to have due regard pursuant to s16 of the Criminal Law (Sentencing) Act to the character and antecedents of the appellant.

The notice of appeal also complains that the learned sentencing Magistrate erred in imposing a fine of $400 in addition to the order for compensation.

When the appeal was first called on for hearing before me, I drew attention to the fact that, given that the conviction was entered at an ex parte hearing conducted when the appellant failed to attend in response to the complaint and summons, there might be some difficulty in suggesting that the learned sentencing Magistrate had somehow or other failed to exercise the discretion under s16. The appellant was not present to invite the exercise of that discretion.

However, quite properly, Ms Roberts, who appeared for the respondent, indicated that she was prepared to argue the appeal on the footing that the matter was at large on the subsequent occasion when the appellant did appear with counsel.  In view of that, I do not pursue, for present purposes, the difficulties which might be thought to stand in the path of an appellant who complains that a conviction should not have been recorded when that conviction is recorded upon his default of appearance in response to the summons.

The appellant is 42 years of age and has no prior convictions or court appearances.

It appears from the affidavit of the police prosecutor, Mr Athans, which was placed before the court on the hearing of the appeal, that the learned sentencing Magistrate was informed that the offence occurred at the Adelaide Institute of TAFE.  It was discovered that someone had been using a part-time lecturer's name and was accessing the Internet under that name. The use was occurring through computers installed in that part of the institute described as a drop-in centre.

When the misuse of the part-time lecturer's name was made known, the Education Manager of the Computer Services Department attended at the drop-in centre and spoke to the appellant. The appellant acknowledged that he was not a student or staff member of TAFE, and did not have permission to use or gain access to the computers.

The assertion in the affidavit of Mr Athans that there are a number of signs around the drop-in centre informing people that students and staff are the only people allowed access to the computers and that unauthorised access is an offence, was disputed on the hearing of the appeal and not pressed.  Be that as it may, the appellant's plea of guilty to the charge carries with it the implication that he must have been aware that his conduct was unlawful and, indeed, so much would appear to be clear from his admission to the Education Manager of the Computer Services Department.

Further investigation revealed that the appellant had been logged on to the system over a period of about four days and had used the system for up to eight hours per day on each of those days.  The cost to the institution of the use of the system by the appellant was $190, which is the amount of compensation eventually awarded by the learned sentencing Magistrate.

Police were called.  They interviewed the appellant, who admitted using the Internet under the name of the part-time lecturer over the period of hours on the days to which I have referred.  Apparently he explained that he had gained access to the computer, or at least gained access to the name of the part-time lecturer, from a friend who was an ex-student from Adelaide TAFE.  He admitted the other relevant facts and said that he had used the computer system to access the Internet because it was "for free and cost less than a telephone call".

Surprisingly, in none of the material which was before the learned sentencing Magistrate does it appear that the appellant ever indicated just what material he was extracting from the Internet and for what purpose.

Mr Press, who appeared for the appellant in the court below and also to advance the appeal, has sworn an affidavit setting out matters which were put on behalf of the appellant to the learned sentencing Magistrate.  He drew attention to the age of the appellant and the fact that he had no prior court appearances.  He said that his client had been involved in broadcasting since he was 17 years of age and that he had been gainfully employed over most of the 25 years since then.  He had apparently developed an interest in computers only recently, was attempting to make a change of direction in his life, and was attempting to find work in other areas.

He apparently did not own a computer and has occasionally made use of a cafe in Rundle Street where patrons can access a computer for nothing.

He made the point that the appellant had not retrieved any information relevant to TAFE or confidential to TAFE.  On the contrary, the information which he obtained through the Internet was generally accessible to the public, or at least those members of the public who cared to gain access to it through the Internet.

The point was made before the learned sentencing Magistrate, and repeated before me, that the appellant did not know that his use of the facility would cost TAFE so much.

The appellant is single and lives alone.  He subsists now on Social Security.

The thrust of the appeal has been directed towards the question whether or not the learned sentencing Magistrate erred in declining to accede to the submission by counsel on behalf of the appellant that no conviction should be recorded.

In his short extempore remarks the learned sentencing Magistrate simply indicated that he did not think that to accede to that course would be appropriate.

Mr Press conceded, on the hearing of the appeal, that there was no overt error in the sentencing remarks. But he submitted that I should infer that there was an error in view of the circumstances of the case and the failure by the learned sentencing Magistrate to exercise his power in favour of the appellant pursuant to s16.

Mr Press submitted that the learned sentencing Magistrate must have given too much weight to what he described as the seriousness of the offence at the expense of properly considering the application not to record a conviction, having regard to the personal circumstances of the appellant. Mr Press went so far as to suggest that there were extenuating circumstances but, in my opinion, he was quite unable to identify anything which could come within the meaning of the words "other extenuating circumstances" in s16(b.

Apart from extenuating circumstances, that section permits the court in its discretion to impose a penalty, that is, a fine or sentence of community service or both, without recording a conviction if that course seems to be appropriate, having regard to the opinion formed by the court with respect inter alia to "the character, antecedents, age or physical or mental condition of the defendant".

There is no doubt that the character and antecedents of the appellant were sufficient to have justified the exercise of the discretion if the learned sentencing Magistrate had cared to do so.  But he was not obliged to invoke the discretion.  Those matters are, as was pointed out by Duggan J in Piva v Brinkworth  simply conditions precedent to the exercise of the discretion.  Cases will vary as to which it might be sought for that exercise of the discretion or its refusal is justified.

I have been referred to Hombsch and Ors v Lovegrove and to MacGregor v Police.   They are examples of cases in which this court has intervened to correct what was perceived to be an error in failing to invoke the discretion to proceed without recording a conviction.  I do not have regard to the particular circumstances of those cases, as it seems to me that each case must depend on its own facts and no great assistance is to be derived by making a nice comparison of one such case with another.

The onus in this case was on the appellant to demonstrate that the failure to exercise the discretion under s16 is an expression of appealable error. In my opinion, while it is true that there were circumstances which might have justified the exercise of the discretion in favour of the appellant, it could not be said that the failure to do so was erroneous.

It is plain from the course of the hearing before the learned sentencing Magistrate that he had regard to the question whether or not it was proper to proceed without recording a conviction, and he was entitled to take the course that he did.  Circumstances which point to the legitimacy of that approach include the serious nature of the offence itself, the persistent manner in which it was committed, that it was committed over a period of time and that there were no extenuating circumstances to explain how it came about that the appellant invaded the computer system without authority to do so.  Furthermore, the carrying out of the offence indicated the deliberate misappropriation of someone else's name and that, itself, is indicative of the fact that it was a calculated offence.

As to the imposition of the fine of $400 in addition to the payment of compensation, this was substantial, but must be considered against the background of the maximum, which was $2,000.

In all the circumstances, I am unable to find that the monetary penalty, that is to say, the combined effect of the fine and the order for payment of compensation was excessive.

The appellant, therefore, fails on that ground as well.

For those reasons, the appeal is dismissed.

[FOLLOWING DISCUSSION AS TO COSTS]

HIS HONOUR:          There is no order as to costs.