Barclay v West [2001] ACTSC 89 (7 September 2001)

Last Updated: 29 January 2002

GREGG JONATHON BARCLAY v CONSTABLE ADAM DRUMMOND WEST [2001] ACTSC 89 (7 SEPTEMBER 2001)

CATCHWORDS

APPEAL - discretion of court not to record a conviction - whether error demonstrated - requirement to give reasons - sufficient indication of basis of decision.

Crimes Act 1900 (ACT), s 26, s 556A, s 556B

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

Shubsole v Rodriguez (1978) 18 SASR 233

Pillage v Coyne [2000] WASCA 135

Beale v GIO of NSW (1997) 48 NSWLR 430

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 44 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 7 September 2001

IN THE SUPREME COURT OF THE )

) No. SCA 44 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: GREGG JONATHON BARCLAY

Appellant

AND: CONSTABLE ADAM DRUMMOND WEST

Respondent

ORDER

Judge: Gray J

Date: 7 September 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from a conviction by the ACT Magistrates Court of the appellant on a charge of common assault, an offence under s 26 of the Crimes Act 1900 (ACT) punishable by imprisonment for two years.

2. The appellant was convicted and, pursuant to s 556B of the Crimes Act, released without sentence being passed upon him entering into a recognisance in the sum of $1,000.00 to be of good behaviour for a period of two years and on condition that he pay the court costs and pursue appropriate relationship counselling.

3. The appeal was instituted as an appeal from the Magistrate's decision asserting that "the decision is manifestly excessive". To make good this ground, in written submissions before me it was argued that the fact of a conviction was a penalty in itself and that to impose it was disproportionate to the gravity of the offence. That approach seems to me to be flawed when, on a plea of guilty, the issue of whether a conviction be recorded or not is dealt with in a particular way by s 556A of the Crimes Act. That section provides:

"556A Conditional release of offenders without proceeding to conviction

(1) Where -

(a) a person is charged before a court of the Territory with an offence against a law of the Territory; and

(b) The court is satisfied that the charge is proved but is of opinion, having regard to -

(i) the character, antecedents, age, health or mental condition of the person; or

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;

the court may dismiss the charge or, without proceeding to conviction, by order, direct that the person be discharged upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, ..."

It is clear that the statutory intervention to not having a conviction recorded, on the court being satisfied that a charge is proved, is predicated on the court's discretion to do so being invoked on the grounds set out in the section (cf Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257).

4. It follows that the real issue on this appeal is whether the Magistrate can be shown to be in error in failing to exercise the discretion to not record a conviction. At the hearing of the appeal Mr Doig, counsel for the appellant, in his oral submissions, put the appeal on this basis and it is on this basis that I approach the matter.

5. The facts upon which the Magistrate was called upon to sentence related to an incident which occurred at about 11.50 pm on Friday, 13 April 2001. Those facts were:

"About 11:50pm Friday 13 April 2001 Police attended at 42 Wakelin Cct, Weston in the Australian Capital Territory. Upon our arrival at that address we spoke to the daughter of the Defendant [appellant] Helen BARCLAY, she told us that her parents had had an argument and that her stepmother was distressed and crying and that she had called Police because her stepmother was too upset to call. She then showed us to the downstairs bedroom where we spoke to Amanda Jane BARCLAY and she said that her husband and she had had a dinner party with another family that evening. The Defendant had commenced consuming alcohol from approximately 6:00pm that evening and over the course of the evening consumed beer, champagne and white wine. When dinner finished the Defendant and Amanda said goodbye to their guests and Amanda went downstairs to her bedroom. Amanda began to undress and had taken off her jeans when the Defendant came out of her ensuite bathroom. The defendant pushed Amanda on to the bed and leaned over her with his knees on either side of her with his arms on either side of her shoulders and forcefully removed her underpants with one hand. The Defendant then grabbed her arms and legs and began to strike himself with her limbs, this caused Amanda pain. At no time did Amanda fear that she was to be sexually assaulted. The Defendant's daughter then entered the bedroom and stood between the Defendant and Amanda. The Defendant then left the room and Amanda attempted to call the Police, however she was too distressed and Helen made the call."

6. The facts also included the appellant's own acknowledgment and acceptance of his separated status towards his wife and his admission that his acts had put his wife in a position where she felt in fear of him. It is clear that the incident was highly distressing to her.

7. The error was said by Mr Doig to be the non-identification by the Magistrate of why a conviction should be recorded. He claimed his client felt a justifiable sense of grievance in not knowing the basis of why he was not "given the benefit of a non-conviction". Mr Doig then referred to a number of authorities dealing with the adequacy of reasons of courts and tribunals.

8. There is some discourse about the extent to which reasons are required to be given when sentencing, particularly in courts of summary jurisdiction. Compare the views of Wells J in Shrubsole v Rodriguez (1978) 18 SASR 233 where the expression of factors influencing courts of summary jurisdiction was said to be desirable with Miller J in Pillage v Coyne [2000] WASCA 135 where a magistrate's failure to give reasons why preconditions to the imposition of no penalty was a sufficient ground for allowing the appeal.

9. The purpose of giving of reasons by courts and tribunals, to permit the parties' understanding of the decision reached and to enable an appeal court to determine if there is an appealable error, is well recognised (see particularly the discussion by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 441-442). Meagher JA also makes the point that it is the case that the content of the reasons depends upon the circumstances of the matter being considered by the court. As was said by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 19:

"The simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge's conclusion will sufficiently indicate the basis of a decision".

10. This was a sentencing matter where what was in question was the degree of leniency that the appellant might expect consequential upon his admission of the offence. In my view, in such a case it would be clearly sufficient for the Magistrate to state the factors which affected or influenced him in doing what he did (see Wells J in Shrubsole v Rodriguez (supra) at 235-236 and see the note on that case in [1978] 2 Crim LN 349). I think, from the course of the proceedings before him, that the Magistrate did so.

11. It is true that the Magistrate did not make any remarks on penalty or give any formal reasons for the order that he made. However, the nature of the exchange between the Magistrate and Mr Perkins, the solicitor appearing for the appellant, makes it clear that a direct submission was made that the Magistrate follow a course of not convicting the appellant in reliance upon s 556A of the Crimes Act. The Magistrate's response was to remark that the matter "can be dealt with by a straight bond". He then went on to say, "I mean the allegations are unfortunate but they're not minor". This exchange makes it clear that he did not regard the circumstances of the commission of the offence as enlivening his discretion. Nothing further was put to him as to why the power that he clearly knew he had under s 556A should be exercised, nor did Mr Doig, on the hearing of this appeal, suggest that there was any other aspect which might.

12. The fact that it is an unusual form of assault, to force someone to strike you, does not of itself, mean that the offence is of a trivial nature. As I have noted, the Magistrate expressed the view that the allegations were unfortunate but not minor. The fact that the appellant subjected his wife to the indignity that he did, put her in fear and caused her considerable distress, all mitigate against the offence being regarded as being of a trivial nature. Once it is accepted that the Magistrate turned his mind to this aspect, and I am satisfied that he did, I should not interfere with the exercise of his discretion where it is not shown that he did not take account of, or that he misapprehended the circumstances that might have called for its exercise (cf Cobiac v Liddy (supra)). The Magistrate determined that the circumstances for the application of s 556A were not present and that it would be inexpedient to inflict any punishment so as to enable him to dismiss the charge or not proceed to a conviction. I am not prepared to interfere with that determination.

13. I dismiss the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 7 September 2001

Counsel for the appellant: Mr A Doig

Solicitor for the appellant: Darryl Perkins

Counsel for the Crown: Mr S Whybrow

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Date of hearing: 30 July 2001

Date of judgment: 7 September 2001