WEIR v Police - [2005] SASC 276

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WEIR v POLICE
Judgment of The Honourable Justice Duggan
22 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against decision of magistrate to enter a conviction and fine appellant in sum of $1000 - appellant pleaded guilty to lighting or maintaining a fire contrary to Country Fires Act 1989, s 36(1) - application to regulatory offences of discretion not to record conviction pursuant to Criminal Law (Sentencing) Act 1988 s 16 - appeal dismissed.
Country Fires Act 1989 s 36(1); Criminal Law (Sentencing) Act 1988 s 16, referred to.
Piva v Brinkworth (1992) 59 SASR 92; El Sayed v Commissioner for Consumer Affairs [2002] SASC 416; Dow v Police [2000] SASC 169; Hemming v Perkins (1999) 74 SASR 307; Malvasso v The Queen (1989) 168 CLR 227; R v Nemer (2003) 87 SASR 168, applied.

WEIR v POLICE
[2005] SASC 276
Magistrates Appeal

DUGGAN J. The appellant pleaded guilty in the Mount Barker Magistrates Court to lighting or maintaining a fire in the open air during a fire danger season contrary to s 36(1) of the Country Fires Act 1989 (“the Act”). The offence took place at Kyeema on 26 December 2004.
The court was informed that on 26 December the appellant lit a fire for the purpose of burning a pile of blackberry branches. Late on the following day strong gully winds in the area reignited the fire and caused it to spread out of control.
Nine country fire appliances attended the fire on 27 December but it could not be fully extinguished. Two fire appliances remained at the scene overnight as strong gully winds continued to blow through the area. The fire burnt through several properties and the appellant was sentenced on the basis that it covered an area of 10 hectares. The appellant did not have a permit to light the fire. When interviewed, he admitted lighting the fire. He said he was aware that it was the fire danger season but believed that he could light a fire if it was not an extreme danger fire ban day. He understood the fire had gone out when he left it on the previous day.
The magistrate recorded a conviction and fined the appellant the sum of $1,000. The appellant now appeals against the sentence. It was submitted on his behalf that a conviction should not have been recorded and that a lower fine should have been imposed.
The penalty for a first offence under s 36(1) of the Act is a term of imprisonment not exceeding one year and/or a fine not exceeding $14,000. Section 71 of the Act provides as follows:
A court, in imposing a monetary penalty for an offence against this Act, must impose a penalty of not less than one-quarter of the maximum penalty prescribed for that offence unless, in the opinion of the court, there are special circumstances justifying a lesser penalty.
The appellant was 57 years of age at the time of the offence. He is a single man who has lived on the property for four and a half years. The prosecutor informed the court that the appellant had no previous convictions. He was retrenched from his employment in February 2005 and was unemployed at the time of his court appearance. It was submitted on his behalf that he was ignorant of the law in that he did not know he was required to possess a permit to light the fire.
The magistrate delivered short extempore remarks on penalty. The defence had submitted that, in the circumstances of the case, it was appropriate not to record a conviction. In response the magistrate said in his reasons:
Regulatory offences of this nature since back in the cases of Cobiac v Liddy and like cases in relation to drink driving cases have always been dealt with by way of conviction unless rare and exceptional circumstances. These are offences as I say of a regulatory nature and put in place for a very good reason. The danger of a fire escaping during the fire danger season in the area you were living in is very high and in fact that is what happened.
Whilst I am prepared to impose the minimum prescribed by the legislation the circumstances in my view do not permit to impose a penalty lower than that.
A sentencing court is given the power to impose a penalty without recording a conviction by the Criminal Law (Sentencing) Act 1988 (“the Act”) s 16 which provides:
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.
It will be seen that the power to exercise this discretion applies to all offences including regulatory offences. However, the courts have been more reticent in applying the section to regulatory legislation: Piva v Brinkworth (1992) 59 SASR 92 at 95; El Sayed v Commissioner for Consumer Affairs [2002] SASC 416 at [38]; Dow v Police [2000] SASC 169 at [8] and Hemming v Perkins (1999) 74 SASR 307 at [57]. The reason for this approach lies in the prominence which is given to preventative and deterrent considerations which are particularly applicable in social legislation of this nature: Hemming v Perkins at [57].
Considerations such as previous good character, whilst relevant, may not be of as much weight as they are in the case of other offences.
The magistrate’s comment that regulatory offences are dealt with by way of conviction except in rare and exceptional circumstances was putting the matter too highly. However, I do not think that his remarks resulted in an incorrect decision.
It may be conceded that the appellant is unlikely to commit an offence of this nature again. However, the discretion not to record a conviction cannot be considered unless one of the circumstances referred to in s 16(b) provides good reason for not recording a conviction.
In my view there was nothing in the character, antecedents, age or physical or mental condition of the appellant to give rise to the exercise of the discretion. I have expressed the view that character and antecedents are often of less significance to penalty in such cases. The offence was not trifling and there were no obvious extenuating circumstances. Mr Stokes, for the appellant, placed emphasis on two matters in this respect: the appellant’s claim that he did not know he was breaking the law and the fact that he thought the fire had gone out.
The potential for destructive consequences resulting from breaches of this particular legislation is readily apparent and is demonstrated by the facts of this case. Misunderstanding as to the law is of little consequence to penalty when considered against this background. The same can be said for the suggestion that the offence was committed through carelessness rather than intent.
In my view the recording of a conviction was justified.
I am also of the view that the fine imposed by the magistrate was well within the sentencing discretion. The fine was the minimum for this offence. The only way in which it could have been reduced was by the application of s 17 of the Act which permits a reduction in the event that one or other of the stated circumstances (which are the same as the criteria for the exercise of the discretion under s 16) provide good reason for such a reduction. The circumstances of this case do not justify the exercise of the discretion under s 17 to reduce the fine below the minimum. What I have said in relation to those circumstances when discussing the discretion under s 16 applies equally to the discretion given by s 17.
A further matter was raised by Mr Stokes. There was some correspondence between the prosecutor and the solicitor who then acted for the appellant prior to the summary hearing. The appellant’s solicitor wrote to the prosecutor asking if the prosecution “will agree to no conviction being recorded”. The prosecutor replied:
If your client wants WOC I think it would be appropriate for me to ask for a higher financial penalty so at least there is some deterrence factor. If you are agreeable to that then I wouldn’t oppose WOC.
In an affidavit admitted on the hearing of the appeal the prosecutor said:
Although I now cannot recall word for word what I said, I made submissions to the effect that if his Honour were to consider imposing a without conviction then a higher monetary penalty should be imposed in order to address the need for appropriate deterrence, in particular having regard to the time of year and location of the fire. At no time did I submit to his Honour that the prosecution did not oppose a without conviction application.
According to the affidavit of the appellant’s solicitor which was also admitted at the appeal, the prosecutor did not oppose the without conviction application but indicated that he felt that the monetary penalty should be higher.
I do not think the differences in these versions as to what the prosecutor said in court are of relevance as far as the appeal is concerned. The court was not bound by any agreement reached between the prosecutor and the defence. It may have been different if the agreement had affected the course of the proceedings: Malvasso v The Queen (1989) 168 CLR 227 at 233; R v Nemer (2003) 87 SASR 168 at 189.
However, it is my view that no prejudice was suffered by the appellant by reason of the course of the proceedings. The magistrate was asked by the defence not to record a conviction. Submissions were made relevant to that consideration. It has been pointed out that the magistrate did not indicate that he was minded to reject the application. However, I do not accept the submission that the appellant’s application was prejudiced because further submissions might have been made if the magistrate had revealed his attitude to the application before passing sentence. In my view the further submissions would have amounted to no more than a reinforcement of what was already apparent.
The appeal will be dismissed.