Willis v Police No. Scgrg-97-1192 Judgment No. S6538

[1998] SASC 6538

JAMES CHARLES WILLIS V POLICE

Court of Criminal Appeal
Coram:  Cox, Mullighan and Williams JJ
Cox J
This is an application to the Full Court on the papers for leave to appeal against a decision by a single judge of this court in a sentence appeal from a magistrate. 
It was a matter for the magistrate's discretion whether, in a case coming within paragraphs (a) and (b) of s16 of the Criminal Law (Sentencing) Act, he should impose a fine without recording a conviction. The considerations urged by the applicant included his previous excellent character and the fact that, at the time he acquired the pornography which was the subject of the charge, it was not an offence to possess it. The magistrate also had to take into account the nature and quantity of the pornography, the circumstance that the applicant, on his own version of the facts, had been in possession of the material since the offence was created four years previously, and the matter of general deterrence.
There is no ground upon which it could fairly be argued that the magistrate's sentencing discretion miscarried. 
Prior J took the view that the applicant had not satisfied the demands of paragraph (a) of s16, and he also agreed with the magistrate's conclusion that s.16 was not available in this case. He referred to three earlier decisions of this court. The applicant's summary of argument interprets the citation of those cases as, in effect, applying a distinction between regulatory or social offences and other offences. The relevance of such a distinction or whether Prior J was relying on it, and, if so, whether that disclosed an error on his Honour's part, might well raise questions fit for the Full Court's consideration. However, allowing the case to go forward on that basis could not assist the applicant, because however those questions might be answered, the learned magistrate dealt with the s16 application on its merits, and the applicant, in my opinion, could not succeed in having the magistrate's decision overturned on the usual discretion principles.
For those reasons I would refuse leave to appeal to the Full Court.
The Full Court for the purpose of this application consisted of Mullighan J, Williams J and me.  The other members of the Court concur in the decision that I have just pronounced on the Court’s behalf.
I direct that the parties be supplied with a copy of this morning's transcript.