56 His Honour observed that the respondent had given evidence that he had "purchased them about three months prior to the search warrant from Harvey Norman on Melbourne Road. He said that there were manuals and warranty books at the premises".
57 He further noted that the respondent had testified to a distinct memory of paying $1,500 for the two items, but that "all his evidence in respect of this charge may be described as vague, evasive and completely unconvincing".
58 His Honour observed that the respondent had known of the charge for some time and it was reasonable to infer that, if the proof of his alleged purchase had been lost, a person in his position would find it helpful to find someone to attend the Harvey Norman store in order to obtain receipts or computer-generated evidence of the circumstances of the acquisition of the items.
59 The magistrate noted that while the respondent had implied that his receipts were destroyed or lost during the course of the police search of his residence, that had not been put to the police in cross-examination.
60 The learned magistrate also noted that it was impossible to believe that if the respondent had told his lawyers of the purchase, he would not know that obtaining proof of purchase would be important. Further, his evidence on how the goods were delivered to his residence was particularly "vague and unconvincing" and his evidence on where he got the money for the goods was characterised by "similar vague answers".
61 The magistrate concluded: "On this charge I have found the defendant's evidence wholly unconvincing. I do not accept it ... [T]he defendant has approached his defence on the basis of legitimate purchase which I am not prepared to accept on the totality of the evidence including his version of events. However, notwithstanding the foregoing and the poor evidence of the defendant, the prosecution, I think must meet the hurdle of the provisions of ss.193 and 195 of the Crimes Act. Mr Hartnett contended the prosecutor was unable to point to a relevant indictable offence, which is, I think, a condition precedent if it is to succeed. No evidence of any burglary or theft was available in respect of the property in this charge. The prosecutor, I think, must be drawn to Charge 1 if it is to succeed".
62 Charge 1 was a charge in relation to trafficking in methylamphetamines.
63 His Honour went on to note that the defendant's evidence that "he acquired the property well before the period set out in the charge was not rebutted, but even if I were to ignore that evidence on this, which is probably reasonable given the general unpersuasive evidence in respect of this charge as well, the prosecutor has not persuaded me beyond reasonable doubt for the reasons expressed in relation to charge 2. The charge will be dismissed."
64 It is not disputed that the magistrate dismissed charge 2 (which related to $33,088.01 in cash found at the respondent's premises) on the basis of his erroneous construction of s.195 of the Crimes Act. In relation to charge 2, the respondent had given explanation for his possession of the cash, which his Honour found unconvincing. He nevertheless concluded that charge 2 must fail as the prosecution was "unable to prove beyond reasonable doubt that the money, or most of it, was the proceeds of crime ... ".
65 An analysis of his Honour's observations in relation to charge 7 indicates that he unequivocally rejected the respondent's evidence, but notwithstanding his rejection of the defence "on the basis of the totality of the evidence including his [the respondent's] version of events", he dismissed the charge because the prosecution had failed to discharge the burden which his Honour had erroneously imposed upon the prosecution.
66 I am satisfied that the dismissal of charge 7 was based on the relevant error of law.
67 The appeal in relation to charge 7 should therefore be allowed, and the charge should be remitted for rehearing.
Exceptional Circumstances
68 The appellant also contended that the learned magistrate erred in concluding that "exceptional circumstances" within terms of s.31(5A) of the Sentencing Act had arisen in this case since the imposition of the suspended sentences, so that it would not be just to restore them.
69 Mr Beale, for the appellant, submitted that unless exceptional circumstances within the meaning of s.31(5A) of the Sentencing Act were identified, the restoration of a suspended sentence was mandatory. The Court had no discretion. The Court had a discretion, however, pursuant to s.31(5A)(b), as to whether to order concurrency in relation to the restored suspended sentence, although prima facie, the restored sentence would be cumulative. Mr Beale submitted that in the present case, the factors identified by the learned magistrate were not exceptional. The only two factors which he identified in relation to the extension of the operation of the suspended sentences were the different character of the breaching offences and the period of imprisonment already served by the respondent. (The Certified Extracts of the Magistrates' Court[11] reveal that the learned magistrate nominated "different type of offence" as the reason for not restoring the suspended sentence.) The two factors identified, either separately or in combination, were incapable of constituting exceptional circumstances within the meaning of s.35(5A).
70 Mr Beale relied in this context on Kent v Wilson.[12] In that case, Hedigan J found that a magistrate had erred in concluding that there were exceptional circumstances within terms of s.18W(6) of the Sentencing Act (which is relevantly in identical terms to s.31(5A) of the Sentencing Act.) The magistrate in Kent v Wilson had found that, although the defendant had pleaded guilty to failing to comply with the conditions of a combined custody and treatment order (by not reporting as directed for assessment and treatment on eight occasions), there were "exceptional circumstances", in that the defendant's behaviour since his release from custody was not typical, and hence "exceptional", when compared or contrasted with his previous behaviour. The magistrate noted that the defendant had been in employment, was learning a trade, worked six days a week and had adopted a different mode of living, thus making "exceptional" progress.
71 Hedigan J observed that the matters referred to by the magistrate could mean no more than that the defendant had improved his behaviour in society. His Honour doubted that "atypical" was a synonym for "exceptional" and observed that the legislature could not have intended that "the living of life in an ordinary way, neglecting the obligations to comply with the conditions, could constitute something exceptional, even though to do so may be considerably different from the pre-sentence behaviour".[13]
72 His Honour noted that if the magistrate's reasoning were correct, it would result in the absurdity that the worse the defendant's previous history, the easier it would be to establish exceptional circumstances. Such a construction would not promote the object and purpose of the legislation.[14]
73 Hedigan J observed that the Sentencing Act did not define "exceptional circumstances". He referred to his earlier decision in Owens v Stevens,[15] in which he had stated that "'exceptional' is defined, contextually, in the Oxford English Dictionary[16] as meaning 'unusual, special, out of the ordinary course'. This does not mean any variation from the norm. The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps may be outside reasonable anticipation or expectation. Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors."[17]
74 His Honour further noted that the "essential human normality" of behaviour, such as leaving home, getting a job and forming a relationship could not be exceptional. Rather, such circumstances were "merely changed circumstances" and were "not only not exceptional but, if not normal, at least commonplace".[18]
75 Possible exceptional circumstances contemplated by Hedigan J in relation to failure to report under a combined custody and treatment order included an incapacity for communication due to being in a state of coma, the destruction of all prisons within the relevant classification, or a case in which the defendant had become an informer after release.[19]
76 His Honour rejected the view that there was, in that context, any sentencing discretion. The word "must" indicated that there must be "an actual finding of exceptional circumstances leading to the opinion that to return the person to custody would be unjust. ... The Court is not relieved of this exercise of power because there are circumstances which might, in the exercise of an ordinary sentencing discretion, be capable of being [taken] into account in deciding that it was appropriate to select the less severe option from the possible range of sentencing options. The circumstances must be exceptional".[20]
77 Mr Croucher contended, on behalf of the respondent, that the decision to restore a suspended sentence was a mixed question of law and fact.
78 He submitted that, despite the prescriptive terms of s.5A of the Sentencing Act, a degree of discretion necessarily inhered because it recognised an exception "if the Court is of the opinion that it would be unjust" in view of any exceptional circumstances, to restore the suspended sentence. As Batt JA stated in Director of Public Prosectuions v Di Nunzio:[21]