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 90Magistrates 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…
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- Wheeler v Police [2012] SASC 90
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- [2012] SASC 90
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CaseChat Overview and Summary
The court found that the Magistrate erred in recording a conviction, as good reason existed for not recording a conviction. This was based on Mr Wheeler's very good character and antecedents, his age, the innocent basis of the offending, and the fact that no specific harm was caused by the divulgence of the information. The court also found that the Magistrate's discretion was not exercised correctly, as it was appropriate to consider whether or not to record a conviction afresh. The court weighed the seriousness of the offence against the factors identified in the Act and considered the potential impact of a conviction on Mr Wheeler's future employment prospects. In all the circumstances, it was appropriate that no conviction be recorded.
The court set aside the convictions and sentences imposed by the Magistrate and exercised its power under section 39 of the Act to release Mr Wheeler without conviction. The court imposed a three-year good behaviour bond in the amount of $100. The court concluded that it was more appropriate to impose a bond pursuant to section 39 rather than a fine pursuant to section 16 of the Act. The appeal was allowed, and the convictions and sentences imposed by the Magistrate were set aside. The court released Mr Wheeler without conviction and imposed a three-year good behaviour bond in the amount of $100.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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