WILSON v Police - [2013] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILSON v POLICE
[2013] SASC 48
Judgment of The Honourable Justice White
12 April 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - POSSESSING, CARRYING OR BEING FOUND ARMED
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
The appellant pleaded guilty to one count of carrying offensive weapons - having been informed of a disturbance occurring between his family members and another family at a shopping centre, the appellant went to the shopping centre taking two poles with him - the appellant told attending police of the presence of the weapons in his vehicle.
The Magistrate recorded a conviction and imposed a sentence of imprisonment for 21 days, but suspended that sentence upon the appellant entering into a bond, in the sum of $400, to be of good behaviour for a period of two years - the appellant appeals against that sentence, contending that the Magistrate should not have imposed a sentence of imprisonment at all, should not have recorded a conviction, and that the two year term of the bond is excessive - the appellant also contends that the whole of the sentence is manifestly excessive.
Held (allowing the appeal in respect of the term of the bond only):
(1) having regard to all the circumstances of the appellant's offending and history, it was open to the Magistrate to impose a term of imprisonment (at [8]);
(2) the Magistrate did not err in the exercise of his discretionary judgment in deciding to record a conviction (at [18]);
(3) the Magistrate erred in fixing the term of the bond at two years - the two year term of the bond is disproportionate to the 21 days of imprisonment (at [27]);
(4) although the sentence can be regarded as severe, it should not (save for the duration of the bond) be characterised as manifestly excessive (at [28]);
(5) the Magistrate's stipulation of a two year term for the bond is set aside, and a term of eight months is substituted (at [29]).
Summary Offences Act 1953 (SA) s 21C; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11, s 16, s 39, s 40, referred to.
Flett v SA Police (Unreported, Supreme Court of South Australia, King AJ, 5 August 1997, Judgment No S6291); Griffin v Police [2005] SASC 337; Markarian v The Queen (2005) 228 CLR 357; R v Austin (1985) 121 LSJS 181; R v Davidson [2011] SASCFC 132; R v De Simoni (1981) 147 CLR 383; R v Ellis (1986) 6 NSWLR 603; R v Fernando (1992) 76 A Crim R 68; R v Major (1998) 70 SASR 488; R v Nemer (2003) 87 SASR 168; R v Simpson (2004) 89 SASR 515; R v Tjami (2000) 77 SASR 514; Ryan v The Queen (2001) 206 CLR 267, considered.

WILSON v POLICE
[2013] SASC 48
Magistrates Appeal

WHITE J. On 28 December 2012, a disturbance involving physical violence and verbal abuse occurred at the Greenacres Shopping Centre. The appellant was involved in the disturbance. He had two “poles” in his car: one seven feet long (apparently a piece of iron fencing rail), and the other shorter but sharpened at one end (apparently a cricket stump). The appellant told the police that he had the poles for the purposes of a fight and had, only shortly before, driven to his home to get them for that purpose.
The appellant is a 23 year old Aboriginal man. The disturbance at the shopping centre had its origins in animosity between the appellant’s extended family and another family. The appellant was not at the shopping centre at the time but was informed of the disturbance and that his grandmother was being threatened. He then drove to his home, collected the two poles, and went to the shopping centre. However, he did not carry the poles into the shopping centre. Shortly afterwards the police attended.
The appellant was charged with, and pleaded guilty to, a single offence of carrying offensive weapons.[1] The Magistrate recorded a conviction and imposed a sentence of imprisonment for 21 days, but suspended that sentence upon the appellant entering into a bond, in the sum of $400, to be of good behaviour for a period of two years. The appellant was required, in addition, to pay levies and costs totalling $474.
[1] Contrary to s 21C(1) of the Summary Offences Act 1953 (SA) – maximum penalty $2,500 or imprisonment for six months.
After briefly summarising the circumstances of the offending, the Magistrate gave the following explanation for the sentence:
You decided, in effect, to take the law into your own hands. It would have been much better for you and family members to have called security, or police.
Your offending is serious. Weapon use in our community is escalating, it is almost out of control, people are too quick to take up arms when they should not. If you had a relevant history I would send you straight to gaol today.
The appellant appeals against the sentence, contending that the Magistrate should not have imposed a sentence of imprisonment at all and should not have recorded a conviction. He also contends that the two year term of the bond is excessive. Finally, the appellant contends that the whole of the sentence is manifestly excessive.
The limited circumstances in which appellate courts may interfere with the discretionary judgments involved in sentencing are well known: an appellant must show that the sentencing court erred in principle; allowed irrelevant matters to affect its decision; failed to have regard to a relevant matter; or mistook the facts. If none of those matters can be shown, an appellant must show that the sentence was unreasonable or plainly unjust.[2]
[2] Markarian v The Queen [2005] HCA 25 at [25]; (2005) 228 CLR 357 at 370-1.
Recognising that this was so, the appellant contended that the Magistrate had failed to give effect to the principle that imprisonment should be imposed only as a last resort, as embodied in s 11 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act); that the police had become aware of his possession of the two poles only because he had told them of their presence in his car and that the Magistrate had failed to give him credit for that fact; that by having regard to the community concern about the “use and prevalence” of weapons in disputes, the Magistrate had had regard to an irrelevant consideration; that he had not, in any event, sought to use the poles but had left them in his car; and, in relation to the recording of a conviction, that the Magistrate had failed to have regard to his Aboriginality and the difficulties in obtaining employment which he faces in consequence.
It is true that the Magistrate did not refer expressly to s 11 of the Sentencing Act or to the principle that imprisonment is a sentence of last resort. However, it does not follow that the Magistrate overlooked those matters. Section 11 incorporates a basic principle of sentencing with which magistrates may be taken to be well familiar and which, in the daily exercise of their duties, they consider and apply frequently. In those circumstances, it is readily understandable that the Magistrate did not refer expressly to s 11 and this Court should not readily infer that it was overlooked. I do not consider that that inference should be drawn in the present case. Further, having regard to all the circumstances of the appellant’s offending and his history, it was open to the Magistrate to conclude that the appellant had shown a tendency to violence towards other persons (s 11(1)(a)(i)) and that any other sentence would be inappropriate (s 11(1)(a)(iv)).
The circumstance that a defendant volunteers to the police having engaged in the conduct constituting the offence will often be mitigatory.[3] The principle is that stated by Street CJ in R v Ellis:[4]
Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.[5]
[3] Section 10(1)(h) of the Sentencing Act requires a sentencing court to have regard to “the degree to which the defendant has cooperated in the investigation of the offence”. See also R v Major (1998) 70 SASR 488 at 489, 499.
[4] (1986) 6 NSWLR 603.
[5] Ibid at 604.
In Ryan v The Queen[6] McHugh J referred to these passages in Ellis and said:
[A]ccording to Ellis, the degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure.
…
The statement in Ellis that “the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency” is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly, or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case.[7]
[6] [2001] HCA 21; (2001) 206 CLR 267.
[7] Ibid at [12], [15]; 272-3. See also R v Simpson [2004] SASC 307 at [71]-[73]; (2004) 89 SASR 515 at 530.
In the present case, it is by no means obvious that the appellant’s possession of the two poles would not have been detected in the absence of his statement to the police. The Magistrate was informed only that the appellant had told an investigating officer that he had weapons in his vehicle. That statement may well have been made in response to a question from the police rather than the appellant volunteering it. I note that the affidavit from counsel who appeared for the appellant at the sentencing does not contain any statement that the appellant had volunteered the information about the weapons.
Even if a submission was made to the Magistrate that the appellant had volunteered the information in circumstances in which his commission of the offence would otherwise have gone undetected, this does not indicate that the sentencing discretion has miscarried. The Magistrate sentenced the appellant immediately after the sentencing submissions were completed. He commenced his sentencing remarks with a statement that he was taking into account all the matters which had been put to him. In these circumstances, if it was put to the Magistrate that the appellant had volunteered his possession of the two poles, I am not willing to conclude that he failed to have regard to the appellant’s cooperation with the police and their investigation. As Ellis and Ryan indicate, it was a matter, but only one matter, to be considered in the exercise of the sentencing discretion.
The submission that the Magistrate had had regard to an irrelevant consideration by taking into account the growing concern in the community about the use and prevalence of weapons in disputes does not have a sound foundation in fact. The Magistrate’s sentencing remarks do not include any statement to that effect. The Magistrate referred only to the escalating use of weapons in the community.
In any event, contrary to the appellant’s submission, it is appropriate for sentencing courts to take account of public attitudes to the type of crime in question. The relevant principle was stated by Doyle CJ in R v Nemer[8] as follows:
The judge can take account of public attitudes to the type of crime in question, and public concern about the prevalence of a type of crime or about its effects. In this general way public opinion is relevant. A sentencing judge can also have regard in a general way to a public expectation that serious crime will attract severe punishment. But it is not lawful for a judge to try to identify and then impose the sentence that the public expect. The judge must sentence according to law, not according to the public expectation. In any event, there is no way of knowing reliably what the public as a whole want or expect in a particular case.[9]
[8] [2003] SASC 375; (2003) 87 SASR 168.
[9] Ibid at [14]; 171.
Thus, even if the Magistrate had referred to the attitude of the public towards the carriage of offensive weapons, he would not have been in error.
Further, it was appropriate for the Magistrate to have regard to the appellant’s stated purpose for carrying the two poles, that is, that he had driven to his home to get the poles for a fight, when there had been no need for him to do so. This was in keeping with the principle that sentences imposed on offenders should take account of all the circumstances of the offence, providing that it does not involve punishing them for offences with which they have not been charged.[10] The appellant’s purpose for carrying the weapons was a relevant circumstance, just as a benign purpose may have been mitigatory.
[10] R v De Simoni (1981) 147 CLR 383 at 389, 395-6; R v Austin (1985) 121 LSJS 181 at 183; R v Davidson [2011] SASCFC 132 at [29].
Next, the appellant complained that the Magistrate overlooked that he was carrying the two poles in his car, rather than on his person. I am not satisfied that this complaint is established. The location of the poles was an obvious feature of the offence. The appellant’s conduct may have been viewed more seriously had he actually carried the two poles into the shopping centre, but that does not mean that their presence in the car was not also serious. The fact of the matter is that the poles had been obtained by the appellant for use if necessary in the disturbance and, although in his car, they were readily available to him for that purpose.
I am unable to discern any error in the Magistrate’s decision to record a conviction. This too involved a discretionary judgment.
It is appropriate to keep in mind that the recording of a conviction serves a number of purposes, including being a formal and public declaration that the person has engaged in the charged conduct. It is part of the community’s denunciation and censure of the conduct. In addition, the imposition of a conviction has both a personal and general deterrent effect. Each of those purposes was relevant in the present case.
The Magistrate was entitled to take a serious view of the appellant’s conduct. He had obtained two poles in order to have them available for use, if necessary, in the disturbance in the shopping centre, a place where (at 3.30 pm) members of the public were likely to be present. The circumstances of his possession of the two poles involved a significant risk to the public.
Further, this was not the appellant’s first offence. In March 2009, when he was aged 19, he committed an aggravated assault. The circumstance of aggravation was his use of an offensive weapon. The appellant was not convicted for that offence but instead released on a bond requiring him to be of good behaviour for a period of 12 months and to appear for conviction and sentence if required. Accordingly, the appellant, although young, must have been aware of the seriousness with which the community treats the use of offensive weapons. Further, the appellant has had the advantage of lenience being extended to him previously. There are limits on the extent to which the courts can continue to extend leniency.
I doubt that the Magistrate could have been satisfied, as required by s 16 of the Sentencing Act, that the appellant was unlikely to commit a similar offence again. Further, the circumstances just summarised mean that this Court cannot conclude that the Magistrate was in error in considering that “good reason” did not exist under s 39 of the Sentencing Act for discharging him without recording a conviction.
The appellant’s counsel emphasised the difficulty which Aboriginal people generally experience in obtaining employment. He tendered on the appeal some statistics from the Australian Bureau of Statistics to support this submission. His contention was that the Magistrate had overlooked this general difficulty when he decided to record a conviction.
The appellant’s Aboriginality was not of itself a reason for lenience in the sentencing. However, it can be appropriate for a sentencing court to have regard to the circumstances of particular ethnic or cultural groups which have the effect that a sentence imposed on them may operate more harshly than would generally be expected.[11]
[11] R v Fernando (1992) 76 A Crim R 58; R v Tjami [2000] SASC 311; (2000) 77 SASR 514.
In applying this principle, it is of course necessary to have regard to the particular circumstances of the particular offender and for the Court to be satisfied that the circumstances which affect the group to which he or she belongs, do affect him or her. Material of this kind was lacking in this case. Apart from the appellant’s Aboriginality, his counsel did not point to any other circumstance arising from the place or circumstances of his upbringing, education or employment history which indicated that he has experienced, or is likely to experience, particular difficulties in obtaining employment in the future. Some material of this kind is necessary if the courts are to avoid giving effect to an inappropriate syllogism. In the present case, instead of showing that the appellant faces particular difficulties in obtaining employment, the evidence shows that the appellant does presently have full‑time employment, and there is no suggestion that his employability has been, or will be, any more jeopardised by the Magistrate’s sentence than would generally be the case.
Finally, the appellant complained of the two year length of the bond. The maximum term for a bond allowed by s 40 of the Sentencing Act is three years. The two year term was accordingly two thirds of that maximum. A sentencing court has a considerable discretion in relation to the terms of bonds fixed under the Sentencing Act. Relevant matters include the gravity of the offending, the period for which the Court considers it necessary that the offender’s good behaviour should be secured by a bond and, if the bond has been framed so as to provide support to an offender during the period of rehabilitation, the period during which that support may be required.[12] In the case of suspended sentence bonds, the period of bond must not be disproportionate to the term of imprisonment imposed.[13]
[12] Griffin v Police [2005] SASC 337 at [22].
[13] Flett v SA Police (Unreported, Supreme Court of South Australia, King AJ, 5 August 1997, Judgment No S6291).

In the present case, I consider that there is disproportionality between the 21 day sentence of imprisonment, on the one hand, and the two year term of the bond, on the other. It is not easy to see a justification for the appellant being kept subject to the obligation of good behaviour for such a long period given that the Magistrate considered that a very short term of imprisonment (21 days) was appropriate. In that circumstance, despite the Magistrate’s discretion as to the length of the bond, I consider that he did err in fixing a term of two years. Having regard to the very short term of imprisonment, I consider that a bond to be of good behaviour for a period of eight months would have been sufficient.
There remains the appellant’s submission that, even if none of the specific errors are established, nevertheless the sentence was manifestly excessive. The imposition of a sentence of imprisonment in this case can be regarded as severe. On one view, other sentencing options may possibly have achieved the same purposes of the Magistrate’s sentence. However, I am unable to agree that (the duration of the bond apart) the sentence should be characterised as manifestly excessive. As I have said, the Magistrate was entitled to regard the appellant’s conduct as serious. The carrying of offensive weapons can result very quickly in them being used, possibly with grave effects. In the present case, the offensive weapons were taken to a place where members of the public would be present. Their safety would obviously have been jeopardised if the poles were used in a fight. The prohibition on the carrying of offensive weapons is an important element in the protection of the community, and it is appropriate for sentences to reflect that consideration.
In summary, I would allow the appeal only for the purpose of setting aside the Magistrate’s stipulation of a two year term for the bond. I would substitute a term of eight months. In all other respects the appeal is dismissed. The appellant will have to enter into a new bond, the term of which will be six months to take account of the time during which he has been subject to the existing bond.