Chatfield v Rhynehart [2008] ACTSC 47

4. The appellant's complaint on this appeal is that the sentence imposed by the magistrate is manifestly excessive and that this was a case where a non-conviction order should have been made by the magistrate pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Section 17 provides:

17 Non-conviction orders--general

(1) This section applies if an offender is found guilty of an offence.

(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b) a good behaviour order under section 13.

Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(b) the seriousness of the offence;

(c) any extenuating circumstances in which the offence was committed.

(4) The court may also consider anything else the court considers relevant.

Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender's conviction for an offence (see Magistrates Court Act 1930, pt 3.10).

5. The ground upon which the appellant appeals is that the penalty imposed was "manifestly excessive".

6. The charges the subject of this appeal arose from two incidents that occurred on the evening of 17 May 2007. They involved obtaining the goods from two separate shops, on both occasions in the company of her partner, Robert Carberry. In both cases, goods were obtained using a stolen credit card and a different stolen credit card was used on each occasion.

7. In summary, what was put to the magistrate on the appellant's behalf was that she was 19 years old, had spent time in her childhood in the care of her father who had an extensive criminal history. She ran away from home when she was aged 16 and was involved in a relationship with an adult person who also had an extensive criminal history. It was put that at the time of the offence the appellant was yet again in a relationship with another person with a significant criminal history. It was put that this relationship is dysfunctional, involving, it was said, domestic violence but that the appellant remained committed to the relationship despite questioning its appropriateness. The appellant had left school at 16 years of age during year 11 but had subsequently completed a number of courses and holds a responsible job at the present time. It was put that she has made determined efforts towards her rehabilitation and was receiving treatment from a psychiatrist and participating in counselling regarding her relationship issues.

8. These were all matters that were before the magistrate to consider in terms as to whether he could act under s 17 of the Sentencing Act. It was put to him by counsel acting for the appellant that he should not record a conviction in these matters. The magistrate drew attention to the seriousness of the matters. In the discussion that took place with counsel as to the appellant's age, the magistrate remarked:

Well, she's 19 years of age. She doesn't have the advantage of extreme youth ... to justify the court taking the view that a conviction should not be recorded, nor does she have the benefit of having any significant period as an adult or, indeed, as a juvenile and an adult of good behaviour, good character, so as to warrant the court not recording a conviction against her. Put simply, she comes within the prime demographic of these courts, people between 18 and 25 years of age who commit criminal offences.

9. Ms Warwick, who appeared for the appellant on this appeal, sought to submit that this indicated that the magistrate had taken a view that in such circumstances it was inappropriate for him to exercise his power to act under s 17 of the Sentencing Act. I do not take his remarks in that way. It seems to me that the magistrate was focussing on but one aspect of all of the aspects that he had to take into account in making his determination under s 17 of the Sentencing Act. In respect of the aspect of age, he was merely remarking that there was a view that he took concerning the appellant's age which did not lead to that feature as having a predominance in his consideration of the matters to which he was to have regard. That view seems to me no more open to challenge than the magistrate's view that the offences were, in his assessment, serious offences. It must always be a question of considering overall the matters set out in s 17 in determining whether or not it was appropriate in any particular case to make a non-conviction order and, no doubt, different weightings may be given to particular relevant aspects by different minds.

10. I refer to the oft quoted passage in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

(See, too, Dinsdale v The Queen [2000] HCA 54; (1999) 202 CLR 321 at 339-340.)

11. I do not regard the magistrate's comments on the appellant's age as amounting to any of the matters which are indicative of error in the passage to which I have referred in House v The King (supra).

12. I am also unable to accede to the submission that the magistrate's decision to decline to make a non-conviction order could fall within the latter part of the passage cited from House v The King (supra) enabling me to infer that in some way there has been a failure to properly exercise the discretion which s 17 of the Sentencing Act reposes in the court. It seems to me to be impossible to say that it was manifestly wrong of the magistrate to not make such an order.

13. In these circumstances, it appeared to me that the appeal must be dismissed and on the hearing of this matter, I ordered accordingly.

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

Solicitor for the appellant: Aboriginal Legal Service (NSW/ACT) Ltd

Solicitor for the respondent: Director of Public Prosecutions ACT