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…

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.

Continue reading Wheeler v Police

Details

AGLC: Wheeler v Police [2012] SASC 90
Case: [2012] SASC 90
Decision Date: 1 June 2012

CaseChat Overview and Summary

The matter of Wheeler v Police involved an appeal by Mr Wheeler against the sentencing orders imposed by the Magistrate. Mr Wheeler had been employed as a forensic technician and was convicted of disclosing sensitive information obtained in the course of his employment via SMS text messages to his girlfriend. He appealed on the grounds that the Magistrate erred in recording a conviction, that the sentence was manifestly excessive, and that no reduction was given for his early guilty plea. The court had to determine whether the Magistrate's decision to record a conviction was correct and whether the sentence imposed was appropriate.

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

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

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