Lumby v Cooper [2008] ACTSC 53

2. At about 4:00am on 27 July 2007, the appellant was pointed out to police officers conducting mobile patrols on London Circuit, Canberra City near Mooseheads Nightclub. Police observed that the appellant appeared to have been urinating against a pillar. They apprehended the appellant and took him to the Watch House.

3. The appellant appeared in the Magistrates Court on 2 August 2007, entered a plea of guilty, and was sentenced immediately. The appellant asked that a conviction not be recorded.

4. The learned Magistrate accepted that the appellant felt "genuine remorse and contrition" for his actions and commended him for his letter of apology to Mooseheads, but convicted the appellant and imposed a small fine.

5. The appellant lodged this appeal on 16 November 2007, after an extension of time was granted.

6. The grounds of appeal were identified as follows:

(a) the learned Magistrate gave insufficient weight to the appellant's character;

(b) the learned Magistrate gave excessive weight to the seriousness of the offence;

(c) the learned Magistrate erred in failing to give reasons for declining to impose a non-conviction order;

(d) the learned Magistrate erred in his exercise of discretion in declining to impose a non-conviction order.

7. At the hearing, counsel for the appellant sought to adduce further evidence. This further evidence relates to the appellant's character, and to his future prospects of studying medicine at the Australian National University. The respondent did not object to the admission of the further evidence.

8. This appeal is technically an appeal against conviction and sentence. However, the small fine imposed appears to be insignificant to the appellant, and it was not raised at the hearing. Nor did the appellant assert that the learned Magistrate was in error in finding the offence proved. The appellant's only real concern is the recording of a conviction, which among other things he believes may adversely affect his chances of being accepted to study medicine at university.

9. Appeals against the recording of a conviction where there is no challenge to the finding that the offence was committed do not seem to be common, and do not fit easily within the standard principles for dealing with appeals against findings of guilt, or the standard principles for dealing with appeals against sentence.

10. Although the statutory basis for a non-conviction order is currently to be found in an Act about sentencing, namely the Crimes (Sentencing) Act 2005 (s 17), the Explanatory Memorandum for the Crimes (Sentencing) Bill says "A non-conviction order is not a sentence".

11. Higgs v The Queen [1999] FCA 1562 was an appeal to the Federal Court from a single judge of this court who had refused to refrain from recording a conviction. In that case, the appeal court pointed out that "the usual result of a guilty verdict or a plea of guilty" is the recording of a conviction.

12. That court went on to dismiss the appeal on the basis that counsel "has not been able to point to any error of law or principle or any failure to have regard to a material matter", and that the appeal court could "see no basis for interfering with the sentencing judge's exercise of discretion". That is, the court applied a similar test to the test that would be applied in an appeal against the exercise of a sentencing discretion.

13. Accordingly, in determining this appeal, I have applied s 214 of the Magistrates Court Act 1930 (ACT) in conjunction with principles equivalent to those applicable to appeals against sentence, to the following effect:

(a) First, the conviction recorded by the learned Magistrate is not to be overturned simply because I might have made a non-conviction order in the first instance (for this principle in relation to appeals against sentence, see Lowndes v The Queen (1999) CLR 665 at 671-672).

(b) Secondly, the refusal to make a non-conviction order may be reversed if the exercise of the learned Magistrate's discretion was affected by a specific error, but only if the appeal court, in re-exercising the discretion, considers that a different decision is appropriate. That is, if error is found but the conviction nevertheless appears to be appropriate, the proper approach is to dismiss the appeal rather than to allow the appeal and again convict the appellant. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (for statements of these principles in relation to appeals against sentence, see House v The King (1936) CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-325; Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 371).

(c) Thirdly, even if no specific error can be identified, the learned Magistrate's decision may be reversed if it is found to be unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the decision is unreasonable, unjust or wrong (in relation to appeals against sentence, see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340). Furthermore, implicit in such a finding is also the conclusion that a different decision is appropriate.

14. In the cases, references to sentences being unreasonable, unjust, or wrong are often accompanied by references to sentences being "manifestly excessive" (see, for instance, Dinsdale). It is not clear to me that this is a meaningful concept in relation to a decision to make or refuse to make a non-conviction order, and none of the grounds of appeal is expressed in those terms.

15. It is necessary for the purpose of this appeal to set out a substantial part of the transcript of proceedings in the Magistrates Court, as follows:

HIS HONOUR: Thank you. I find the matter proved. All right, I've read that material that you've handed up Mr Lumby, it's most helpful and I accept that as a genuine demonstration of your remorse and contrition in the matter. Stand up please. What would you like to say about it?

THE DEFENDANT: Just deeply regretful for what I did last Thursday night. There is no excuse for what I did, it was a completely inappropriate act and being intoxicated is definitely no excuse for that. In the future I'm now determined to control my alcohol consumption such that I stay in complete control of my actions and never get to the state where such an incident could ever occur again. During this time, I've lost so much respect for myself and utterly embarrassed and humiliated and my family - - -

HIS HONOUR: That was your 19th birthday?

THE DEFENDANT: Yes, that's correct.

HIS HONOUR: Well happy birthday and many happy returns for the day, but this is not the way to spend your birthday, mate.

THE DEFENDANT: I agree, very much so.

HIS HONOUR: You appreciate this behaviour is offensive both to men and women?

THE DEFENDANT: Yes.

HIS HONOUR: And it just seems to be commonplace in this town between Thursday and Sunday morning, everybody engages in this behaviour because they've had too much alcohol.

THE DEFENDANT: That's correct.

HIS HONOUR: It's offending not only to men and women but it puts people off coming to this city in the terms of tourism, going out for a meal and all that sort of thing. What else have you got to say about it?

THE DEFENDANT: I'm currently undertaking study at ANU to ultimately become a doctor and I'm very concerned that my completely inappropriate behaviour, if recorded, will impinge on my desire to serve members of the community later on as a doctor. Therefore I'm pleading that the incident not be recorded and I'm willing to work to pay off any fine, commit to numerous hours of community service or even a good behaviour bond if you deem it necessary.

Once again I'm deeply remorseful and promise never to engage in such silly and stupid behaviour again.

HIS HONOUR: When did you go out drinking?

THE DEFENDANT: Thursday night.

HIS HONOUR: And this happened at 4 am in the morning?

THE DEFENDANT: Yes. We went out at about 10 o'clock and started drinking then, and then went to Academy, the nightclub, in Civic, and then as I was returning home I was waiting for friends who were ordering pizza and other friends who were just mucking around and then that's when I did it, sir.

HIS HONOUR: I gather from either what you've written in an apology to Mooseheads, which I commend you for, and that will help you, that you were apparently a regular patron at Mooseheads?

THE DEFENDANT: Yes, that's correct.

HIS HONOUR: Do you think that ought to be cut out now? Go and find somewhere else to drink?

THE DEFENDANT: I sincerely hope it wouldn't be, because that's where most of our university functions do take place. But, I mean, I can understand if it would be.

HIS HONOUR: Are you at ANU or ADFA?

THE DEFENDANT: ANU.

HIS HONOUR: Because the ADFA boys go down there too, you know.

THE DEFENDANT: Yes, I know. I have some friends at ADFA.

HIS HONOUR: Particularly after Rugby and Aussie rules.

THE DEFENDANT: Yes.

HIS HONOUR: All right well I'll take everything into account that you've said but I'm going to impose a fine at the lower scale. My standing tariff for this sort of offence is $350 to $400, is that clear?

THE DEFENDANT: Yes.

HIS HONOUR: You'll be convicted and fined $150, court costs $59. How much time will you need to pay that?

THE DEFENDANT: Is that a total of $500?

HIS HONOUR: $209.

THE DEFENDANT: I could probably pay that within a month.

HIS HONOUR: I'll give you 3 months to pay.

THE DEFENDANT: 3 months, that's fine.

HIS HONOUR: All right, now that conviction and fine can be attributed to silly errant young behaviour, all right? It should not affect your future prospects in your medical career. You'll know what to say to them if they ask "What the heck is this all about?" all right?

THE DEFENDANT: So - - -

HIS HONOUR: Put it down to your young age and immaturity. Get on with your studies and make the most of your medical studies, is that clear?

THE DEFENDANT: That's very clear, sir.

HIS HONOUR: All right, well go and enjoy your birthday and don't let this happen again.

THE DEFENDANT: So is that on my record, sir?

HIS HONOUR: What's that?

THE DEFENDANT: Is that actually on my record?

HIS HONOUR: That's on your record, convicted and fined $150, court costs $59. You've got 90 days to pay. And you're getting off lightly. Okay?

THE DEFENDANT: Yes.

16. It is apparent from the transcript that the sentencing process was relatively informal, and that the learned Magistrate focussed on giving the appellant advice aimed at keeping him out of trouble in the future. This may have been an appropriate and productive approach in the circumstances, but unfortunately it appears to have distracted the learned Magistrate from addressing properly the question whether to grant the appellant's express request for a non-conviction order.

17. The grounds of appeal are most usefully dealt with out of order, given that grounds (a) and (b) are really particularisations of ground (d).

18. Ground (c) is that "The learned Magistrate erred in failing to give reasons for declining to impose a non-conviction order."

Did the learned Magistrate err in failing to give reasons for his decision?

19. There is clear authority for both the proposition that sentencing courts must give reasons for their decisions (see, for instance R v Thomson & Houlton (2000) 49 NSWLR 383 at [42]) and the proposition that the proper performance of this obligation in a magistrate's court must be assessed having regard to the environment in which such courts operate. As explained by Kirby P in relation to the NSW Local Courts (Acuthan v Coates (1986) 6 NSWLR 472 at 479), it would be an error for an appeal court to:

"[examine] this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates".

20. I note this caution, but note also that the relaxed nature of the discussion recorded in the transcript suggests that this is not a case in which the pressures of a busy magistrate's court can readily be blamed for any errors that might be found in the sentencing process.

21. The transcript quoted above shows that the unrepresented appellant expressly asked the learned Magistrate not to record a conviction, and was not sure, until right at the end of the sentencing process, that his request had been refused. Reading the transcript, of course, it is clear that the learned Magistrate had in fact stated at least twice that he was convicting the appellant.

22. On the other hand, the transcript does not reveal much about the learned Magistrate's reasons for proceeding to convict. Although he said that he would "take everything into account that [the appellant] said", his only comments that are directly relevant to the request for a non-conviction order are as follows:

... now that conviction ... can be attributed to silly errant young behaviour, all right? It should not affect your future prospects in your medical career. You'll know what to say to them if they ask "what the heck is this all about?" all right? ... Put it down to your young age and immaturity.

23. It seems to me arguable that the learned Magistrate's comments were not an adequate statement of reasons for his decision to refuse a non-conviction order, especially since the fact that the appellant was not even sure about what decision his Honour had made implies that he had not understood his Honour's comments as reasons for the decision. However, I refrain from making any such finding, because it seems to me for reasons set out below that the transcript taken as a whole indicates that his Honour fell into error in the process of deciding not to make a non-conviction order, and therefore it is not necessary to decide whether there was also a failure to provide reasons.

Did the learned Magistrate err in refusing to make a non-conviction order?

24. Ground (d) of the grounds of appeal is that "The learned Magistrate erred in the exercise of his discretion in declining to impose a non-conviction order". Grounds (a) and (b) identify particular errors that the appellant asserts infected the learned Magistrate's exercise of his discretion whether to make a non-conviction order, namely that his Honour gave insufficient weight to the appellant's character and excessive weight to the seriousness of the offence.

25. In order to decide whether the learned Magistrate did fall into error in the exercise of that discretion, it is necessary to consider the significance of the court's power to make a non-conviction order where an offence has been proven. The relevant provisions of s 17 of the Sentencing Act are as follows:

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.

26. In some Australian jurisdictions, the possible impact of a conviction on the offender is specified as one of the criteria for exercising the power to make a non-conviction order. For instance, s 12(2) of the Queensland Penalties and Sentences Act 1992 includes as one of the matters to be considered in the context of a conviction decision:

(c) the impact that recording a conviction will have on the offender's--

(i) economic or social wellbeing; or

(ii) chances of finding employment.

27. The equivalent provision in s 8(1) of the Victorian Sentencing Act 1991 requires the court to have regard to "the impact of the recording of a conviction on the offender's economic or social well-being or on his or her employment prospects".

28. The ACT provision does not specifically refer to the offender's economic, social or employment prospects, but permits the court to consider "anything else the court considers relevant" (s 17(4)).

29. Thus, while ACT courts are empowered to take account of economic, social or employment prospects in considering whether to make a non-conviction order, it is clear that the impact of a conviction on those prospects is not the single determining factor in the court's decision on a non-conviction order.

30. Indeed, as was canvassed during the hearing of this appeal, the significance of a non-conviction order on employment and related prospects may now be relatively minor; laws and institutions that concern themselves with a person's criminal history are now often quite sophisticated in how they deal with that history. Relevant criteria and questions are rarely framed so as to allow a person to conceal a finding of guilt simply because a conviction was not recorded, and concealing such a finding by taking a technical approach to a question may, if discovered, disadvantage a person more than a frank disclosure of the matter would have done.

31. I therefore conclude that the circumstances in which an ACT Court may make a non-conviction order extend well beyond the increasingly small number of cases in which the conviction might affect the offender's career prospects.

32. A review of some of the few ACT cases in which non-conviction orders have been discussed is also informative.

33. As previously mentioned, the appeal in Higgs was dismissed on the grounds that the appellant had not identified any error on the part of the trial judge. However the appeal court did not comment on the circumstances in which a non-conviction order might properly be made.

34. Chatfield v Rhynehart [2008] ACTSC 47, in which Gray J dismissed an appeal against a refusal to make a non-conviction order, provides more assistance. The matters put to the court on the appellant's behalf related to her youth, her unfortunate history of associating with criminals (both in her family of origin and in the relationships she chose) and her prospects of rehabilitation. The sentencing Magistrate noted the seriousness of the offences (two charges of obtaining goods dishonestly and by deception, using stolen credit cards), and that the appellant's age did not of itself give her any particular claim to a non-conviction order.

35. It is not clear whether the learned Magistrate in that case considered the appellant's employment prospects, but it is clear from Gray J's judgment that those prospects were not the only matters that he saw as relevant to decisions about non-conviction orders. He said (at paragraph [9]):

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.

36. Kent v Arley [2007] ACTSC 66 (`Kent') was a case with much in common with the present case. On appeal against a failure to make a non-conviction order, Connolly J found that the learned Magistrate's decision was infected by error because counsel for the appellant had failed to invite her Honour to exercise her discretion to make a non-conviction order. He allowed the appeal, set aside the conviction and ordered that no conviction be recorded.

37. The appellant in that case was not an Australian citizen, and Connolly J pointed out, in effect, that it would be an error to make a non-conviction order purely to avoid "the inevitable consequence of immigration offences". However, that was not an issue in the case before him, and he went on to say:

It seems to me that regardless of the appellant's immigration circumstances, she is a person really for whom the section was designed. It is, in a sense, Parliament's clear indication that young people sometimes make a mistake and the community says, in a sense, people are entitled to one mistake, and to put that problem behind them and not record a conviction, and the appellant, it seems to me, is a person who otherwise presents as a person who is going to go on and make something of her life and be a valuable member of this community, as a citizen, as a permanent resident, engaging in worthwhile activities. (Kent (supra) at [9])

38. If the relevant considerations for the making of a non-conviction order go beyond the possible impact of a conviction on the defendant's career and employment prospects, which emerges from both s 17 itself and the cases I have referred to, then the learned Magistrate was in error in making a decision to refuse the order purely on the basis of his assumptions about the impact of the conviction on those prospects. This is especially the case since he had given inadequate or no consideration to some of the other matters specifically mentioned in s 17(3). His Honour mentioned the appellant's age briefly in the comments quoted at paragraph 22 above, and his age and the circumstances of the offence, indirectly, in the context of wishing the appellant a happy birthday. He commented on the nature of the offence briefly, possibly overstating the significance of the particular offence in implying that offensive behaviour at 4.00 am would deter people going out for a meal in the city. He did not advert to the fact that offensive behaviour is one of the least serious non-traffic offences on the statute book, and that this particular incident was a fairly minor example of offensive behaviour. Other relevant matters specified in s 17, notably the appellant's character and antecedents (specifically the lack of any criminal record) were not mentioned at all.

39. It is true that the appellant's request for a non-conviction order was framed only by reference to his future study plans, and that his Honour did respond to that aspect of the request (although the basis of his Honour's certainty about the appellant's study prospects is not clear).

40. However, when a court is dealing with an unrepresented defendant, especially one who is both young and completely inexperienced in the court, it is reasonable to expect the court, at least, to give proper consideration to any legal matter raised by the that unrepresented person. This is not to say that busy magistrates are required to run cases on behalf of self-represented offenders as if they were the legal representatives of those offenders, but I consider that they are obliged to meet such a party's request to exercise a statutory power with a serious consideration of the basis on which the power might be exercised.

41. The court's duty to unrepresented litigants has been canvassed from time to time, especially in recent years, although mainly in the context of what is required to ensure a fair trial of a matter involving an unrepresented party. Mahoney JA in the matter of Rajski v Scitec Corporation Pty Ltd (unreported, NSW Court of Appeal, 16 July 1986 BC8601930), however, makes some useful observations of general application, as follows:

When a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.

42. Thus, I find that the learned Magistrate fell into error to the extent that he failed to take account of relevant considerations in deciding whether to exercise his power to make a non-conviction order as requested by the appellant.

43. The final question to be determined, then, is whether a different order would have been appropriate. The appellant was 18 years old at the time of the offence. He had no criminal record. He was a university student studying psychology and with ambitions to study medicine in due course. He had provisional admission to the ANU Medical School subject to successful completion of further competitive processes following satisfaction of specified academic requirements. He produced several references, some of which were also before the learned Magistrate, attesting to his general good character and sense of responsibility.

44. I note that if the appellant in Kent was "a person ... for whom [s 17] was designed", the appellant in this case must also be such a person. Like the appellant in Kent, the appellant in this case is a young person of previous good character, and a person who "otherwise presents as a person who is going to go on and make something of [the appellant's] life and be a valuable member of this community ... engaging in worthwhile activities" (Kent (supra) at [9]).

45. Furthermore, while the offence in Kent was relatively trivial (minor theft, carrying a maximum penalty of 50 penalty units or 6 months imprisonment or both), it was more serious than that in the current case (offensive behaviour, maximum penalty $1,000), and involved an element of dishonesty that is absent from most if not all offensive behaviour offences. This comparison suggests that the appellant has a serious claim (although clearly not an entitlement) to the exercise of the discretion to make a non-conviction order, and that making such an order would be an appropriate exercise of the discretion.

46. I therefore find that in this case it is not appropriate to impose any punishment (other than nominal punishment) on the appellant, and that a different order, namely a non-conviction order, should be made. Further, I do not consider that there is any need to exercise the power in s 17 to make a good behaviour order in conjunction with that non-conviction order. The grounds for allowing the appeal are thus made out.

(b) the application to adduce further evidence is allowed;

(c) the conviction recorded by the learned Magistrate and the fine imposed, but not the finding of guilt, are set aside; and

(d) a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT), being an order directing that the charge be dismissed, is substituted.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: ACT Director of Public Prosecutions