Wheeler v Police - [2012] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHEELER v POLICE
[2012] SASC 90
Judgment of The Honourable Justice Blue
1 June 2012
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
The appellant pleaded guilty to three counts of divulging confidential information contrary to section 34 of the Coroners Act 2003 (SA). The Magistrate recorded a conviction and imposed fines in respect of each count.
Whether the Magistrate erred in recording a conviction - whether the sentence was manifestly excessive.
Held, allowing the appeal: the Magistrate overstated the seriousness of the offending and erred in his approach to consideration of whether to record a conviction.
Order: conviction and sentence imposed by the Magistrate set aside. Power exercised under section 39 of the Criminal Law (Sentencing) Act 1988 (SA) to release the appellant without conviction upon entry into a bond for 3 years.
Coroners Act 2003 (SA) s 34; Criminal Law (Sentencing) Act 1988 (SA) s 16, 39, referred to.
Hodgins v Police [2008] SASC 176; R v Stubberfield (2010) 106 SASR 91, applied.
Police v Zefi [2003] SASC 218; R v Healey [2010] SASCFC 64; Schmidt v Police [2005] SASC 482; Sims v Police (2000) 30 MVR 524, considered.

WHEELER v POLICE
[2012] SASC 90
Magistrates Appeal: Criminal
BLUE J:

The appellant Mr Wheeler pleaded guilty in the Adelaide Magistrates Court to three counts of divulging confidential information obtained in the course of administration of the Coroners Act 2003 (SA).[1]
[1] Coroners Act 2003 (SA) s 34.
The Magistrate recorded a conviction and imposed a fine of $2,000 on each count.
Mr Wheeler appeals against the orders of the Magistrate on the grounds that:
1.the Magistrate erred in recording a conviction;
2.the sentence was manifestly excessive;
3.the Magistrate gave no reduction on account of Mr Wheeler’s early guilty plea.
Background facts
Mr Wheeler was employed as a forensic technician in the pathology section of the Forensic Science Centre (SA) between May 2006 and February 2011. For the previous twenty years, he had been employed in a similar position (technical assistant) at the Institute of Medical and Veterinary Science.
The Forensic Science Centre undertakes, amongst other things, pathology work for the State Coroner. Mr Wheeler worked on various matters in which the Forensic Science Centre was undertaking such work.
Between May and September 2010, Mr Wheeler sent three SMS text messages to his then girlfriend. Each concerned a death. The name of a juvenile suspected of killing one deceased, the relationship to the deceased of a person suspected of killing another deceased and the name of a juvenile related to the third deceased but not suspected of killing the deceased were disclosed. The first name of one deceased was disclosed. Some details of injuries sustained by the deceased and of the circumstances of the deaths were disclosed.
In February 2011, Mr Wheeler’s employment at the Forensic Science Centre was terminated due to the SMS texts. He was no longer able to obtain employment in the pathology field. He now works as a domestic carer at a much reduced wage. He is 48 years of age. He has no prior convictions and has not been the subject of any previous disciplinary proceedings.
In November 2011, Mr Wheeler was charged on complaint with the three counts, together with a fourth count. In January 2012, he pleaded guilty to the three counts and the fourth count was withdrawn.
In submissions on penalty, Mr Wheeler submitted that it was appropriate for the court to impose a penalty without recording a conviction pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”). Mr Wheeler tendered two character references. It was submitted on behalf of Mr Wheeler, and accepted by the Magistrate, that he had sent the text messages innocently, believed that his girlfriend would not pass on the information and had no intention of hindering any police investigation.
The Magistrate recorded convictions and imposed a fine of $2,000 on each count.
The Magistrate’s Reasons
The essence of the Magistrate’s reasoning in relation to the submission that he ought not to record a conviction was as follows:
[5]I intend to sentence you on the basis that … the information you sent was … of an extremely sensitive nature … although I do accept that the … divulging of the information did not, in fact, hinder any of those investigations. I repeat, however, there was, in my view, enormous potential for that to occur …
[14]I am about to impose a fine in relation to these matters. I am satisfied that you are unlikely to commit the offences again and so my discretion is enlivened as to whether or not to record a conviction …
[16]I am fairly firmly of the view that a conviction ought to be recorded. This was a massive breach of your position of trust within the Forensic Science Centre … Your breach of trust and your offending is so serious that to not record a conviction would be totally inappropriate in all the circumstances.
Penalty without conviction
The first ground of appeal is that the Magistrate erred in his approach to his consideration whether to record a conviction.
Mr Wheeler puts two contentions:
1.the Magistrate significantly overstated the seriousness of the offending; and
2.the Magistrate considered only two of the three pre-conditions under section 16 of the Act to the exercise of the discretion not to record a conviction and conflated the third pre-condition with the exercise of the discretion.
Seriousness of offending
Mr Wheeler contends that, without diminishing the seriousness of a contravention of section 34 of the Coroners Act, the Magistrate overstated the seriousness of those specific offences as to potential hindrance of police investigations and as to the nature of Mr Wheeler’s breaches.
As to the first matter, the Magistrate did not have before him any evidence, submissions or other basis on which to make an assessment that there had been any potential for the text messages to have hindered the police investigations. It is possible that, given the state of the police investigations as at the date on which each text message was sent, there was no potential for them to hinder the police investigations. For example, the text message the subject of count two was sent more than a year after the death in question and itself suggested that no offence had been committed in connection with the death. If there had been a potential to hinder police investigations in a specific way, it had been open to the prosecution to make a submission and if necessary adduce evidence to that effect before the Magistrate. In these circumstances, there was no basis for the Magistrate to sentence Mr Wheeler on the assumption that there had been an “enormous potential” for police investigations to be hindered.
As to the second matter, the Magistrate characterised Mr Wheeler’s conduct as “a massive breach of your position” and “an appalling breach of trust”. He described the first characterisation as “a ridiculous understatement”. Given the submission made on behalf of Mr Wheeler, apparently accepted by the Magistrate, that the offending was made on an “innocent basis”, these characterisations significantly overstated the nature of Mr Wheeler’s breaches. It is not inherently likely that a forensic technician employed by the Forensic Science Centre would be aware that he or she was subject to the provisions of the Coroners Act or that it comprised a criminal offence to divulge confidential information. While ignorance of the law is no excuse, the Magistrate’s characterisation of the degree of “breach of trust” was exaggerated.
Pre-conditions for exercise of discretion
Section 16 of the Act provides as follows:
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.
There are three pre-conditions to the exercise of the discretion:
1.the court proposes to impose a fine (or community service);
2.the court is of the opinion that the defendant is unlikely to commit such an offence again; and
3.the court is of the opinion that, having regard to one or more of the specified factors, good reason exists for not recording a conviction.[2]
[2] Police v Zefi [2003] SASC 218 at [10] per Gray J; Schmidt v Police [2005] SASC 482 at [16] per Doyle CJ; Hodgins v Police [2008] SASC 176 at [14] per Gray J.
The Magistrate explicitly identified the first two pre-conditions, and was satisfied that they existed. However, he did not identify or refer to the third pre‑condition and proceeded to exercise the discretion without having first given separate consideration to the existence of the third pre-condition. At best, this resulted in a conflation of two separate steps in the reasoning process. This error is particularly important because it has been held that, once all three pre‑conditions are satisfied, while the discretion is at large, it is generally unlikely that a conviction will be recorded.[3]
[3] Sims v Police [2000] SASC 102; (2000) 30 MVR 524 at [4] per Bleby J; Hodgins v Police [2008] SASC 176 at [14] per Gray J.
In these circumstances, the Magistrate made two errors in his consideration whether or not to record a conviction and it is appropriate for me to consider that question afresh.
Fresh consideration
The first question is whether good reason exists for not recording a conviction having regard to the factors set out in section 16(b) of the Act. Mr Wheeler relies upon his character, antecedents and age. He is 48 years old and has very good character and antecedents as evidenced by the character references and the fact that, prior to these offences, he had never been convicted of an offence or been the subject of any disciplinary proceedings.
Mr Wheeler also relies upon other extenuating circumstances, namely the “innocent basis” of the offending and the fact that no specific actual harm was caused by the divulgence of the information.
It has been held in a number of cases that circumstances such as these are capable of constituting good reason for not recording a conviction notwithstanding that the nature of the offence was serious (such as breaking and entering or assault occasioning actual bodily harm).[4] In my view, the personal circumstances of Mr Wheeler and the circumstances of the offending are such that good reason exists for not recording a conviction.
[4] R v Stubberfield [2010] SASC 9; (2010) 106 SASR 91 at [47] per Gray, Sulan and David JJ; R v Healey [2010] SASCFC 64 at [14] and [19] per David J (Doyle CJ and Peek J agreeing).
The second question involves the exercise of the discretion whether or not to record a conviction. Once this point is reached, it is appropriate to consider whether the discretion should be exercised (whether pursuant to section 16 or section 39 of the Act).[5]
[5] R v Stubberfield [2010] SASC 9 at [43] and [50] per Gray, Sulan and David JJ.
The exercise of the discretion under section 16 involves weighing the seriousness of the offence against the factors identified in paragraphs (a) and (b) and taking into account the potential impact of a conviction on Mr Wheeler’s future and in particular prospects of future employment.[6] While Mr Wheeler’s present employer is aware of the offences, his future employment with another employer might be jeopardised as a result of the recording of a conviction. In all of the circumstances, it is appropriate that no conviction be recorded, whether under section 16 or section 39 of the Act.
[6] R v Stubberfield [2010] SASC 9 at [44]-[50] per Gray, Sulan and David JJ.
The final question is under which section it is appropriate to proceed.
Proceeding under section 16 would involve the imposition of a fine, either in the amount imposed by the Magistrate or (if I were persuaded by Mr Wheeler’s submission that the amount was manifestly excessive) a lesser amount determined on appeal. Proceeding under section 39 would involve the imposition of a bond to be of good behaviour.
Both Mr Wheeler and the Police submit that, if I exercise my discretion not to record a conviction, it is more appropriate to impose a bond pursuant to section 39 rather than a fine pursuant to section 16. The observations of the Full Court in R v Stubberfield[7] are apposite in this case. Accordingly, I proceed pursuant to section 39.
[7] R v Stubberfield [2010] SASC 9 at [50] per Gray, Sulan and David JJ.
Other grounds of appeal
Given my conclusion on the first ground, it is unnecessary to consider the other grounds of appeal.
Conclusion
I allow the appeal. I set aside the convictions and sentences imposed by the Magistrate. I exercise the power under section 39 of the Act and release Mr Wheeler without conviction upon entry into a 3 year good behaviour bond in the amount of $100 (pursuant to section 18A of the Act).