WEINERT v CTH DPP No. SCGRG-98-1593 Judgment No. S34 [1999] SASC 34

Supreme Court of SA|1999-02-09|Before: Nyland J

Judgment No. S34

On Appeal from MAGISTRATES COURT, MS R H MCINNES, SM

2 On 5 November 1998, the appellant appeared before a stipendiary magistrate in the Adelaide Magistrates Court and pleaded guilty to both charges. He was represented by Mr McLeod of counsel. The circumstances surrounding the offences are as follows:

3 On Thursday 11 June 1998, between about 11.20 am and 12 noon at West Croydon, the appellant made six telephone calls to a specified number and either breathed heavily into the telephone or hung up without saying anything. At about 12 noon, he telephoned the same number but on that occasion said "I am feeling my cock". It appeared that the recipient of all of the telephone calls was a 15 year old girl who was at home alone, absent from school because she was ill. She became extremely frightened and telephoned her father who arranged for Telstra to put a trace on the line. This in due course led to the apprehension of the appellant. When interviewed the appellant admitted making the calls. He said that he had obtained the telephone number at random from the telephone directory. In the course of sentencing submissions the prosecutor provided the magistrate with a victim impact statement prepared by the victim's father. The appellant had no relevant prior record. Mr McLeod then made submissions in mitigation of penalty on behalf of the appellant.

4 Mr McLeod told the court that the appellant was a 29 year old man who had worked in a number of positions but mainly in the area of delivery driving. He was currently employed by Mastercraft delivering furniture. His wages varied as it was a casual position and the hours varied but on the average he received $200 per week and was previously of impeccable character. He said that the appellant had been at home with a friend. They had been drinking and became intoxicated and they had both decided to pick a telephone number at random and had made the calls as a prank or joke. He submitted that the appellant did not know the identity, age or general whereabouts of the victim. The appearance of the appellant in court had caused him some humiliation. The appellant was extremely contrite and wished if possible to transmit a letter of apology to the victim. Mr McLeod invited the magistrate to exercise her discretion to refrain from recording a conviction as it would have a deleterious effect on the appellant's job prospects.

5 In the course of her sentencing remarks, the learned magistrate indicated that she was prepared to sentence the appellant on the basis that the telephone number had been picked at random but said that in so doing the appellant had taken the risk about the seriousness of the offending in regard to the circumstances of the offence and in particular the circumstances of the person at the other end of the telephone. She commented that this kind of offending was very frightening and difficult to detect and therefore called for substantial weight to be given to deterrence.

6 The magistrate sentenced the appellant to six months imprisonment which she suspended on the appellant entering into a bond in the sum of $11 to be of good behaviour for a period of 12 months. She further ordered the appellant to be under the supervision of the Department of Correctional Services and to comply with all reasonable directions, including directions to attend drug and alcohol counselling or treatment programs and any appointments for the purpose of psychiatric assessment and any treatment programs that may be recommended following assessment. She also ordered the appellant to pay court fees of $102 and a prosecution fee of $80 within a period of 12 months.

7 This was a prosecution pursuant to the provisions of the Crimes Act 1914. Section 19B of that Act empowers the court to dismiss the relevant charge or charges against the person or alternatively make a recognisance release order where -

"(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

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

(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 offender on probation; ..."

8 The thrust of the submissions put by Mr Slade, who appeared as counsel for the appellant on the hearing of the appeal, was that the appellant's prior good character, the circumstances of the offending and the significant impact that a conviction would have upon the appellant's future employment were matters which should have required the magistrate to exercise her discretion to refrain from recording a conviction. Mr Slade also submitted that the omission of any mention in the reasons of the power to proceed under s19B supported his argument that the magistrate had failed to give any or sufficient consideration to that matter. Mr Slade further submitted that the magistrate had failed adequately to take into account the appellant's plea of guilty, the degree of co-operation with police, the character, antecedents, cultural background, age, means and physical and mental condition of the appellant and the prospects for rehabilitation, and had thereby imposed a sentence which was manifestly excessive.

9 Mr Slade also referred to s16F (2) of the Crimes Act 1914. That section requires a sentencing court which releases a person on recognizance to explain the purpose and consequences of making the recognizance release order including the consequences of a breach of conditions and the right to apply to discharge or vary it. In this case, the magistrate failed to make any mention of any of those matters. Mr Slade submitted that this could be taken into account, either as a matter which indicated an error in sentencing on the part of the magistrate, which would enable this court to exercise the sentencing discretion afresh, or alternatively, as a matter indicative of the failure of the magistrate to fully consider all relevant issues prior to imposing sentence.

10 This last matter can, I think, be disposed of quite shortly. Although the magistrate should have complied with the provisions of s16F(2), that failure does not invalidate the sentence. I consider that this situation is covered by s19AH of the Act which operates to correct irregularities in the fixing of a non-parole period or the making of a recognizance release order. In addition, I do not consider that the magistrate's failure to explain those matters to the appellant, nor the omission of any reference to the power to proceed without recording a conviction indicates a failure on the part of the magistrate to consider all relevant matters. The sentencing remarks of the magistrate are extremely brief. It must be borne in mind, however, that these were ex tempore remarks made by an experienced magistrate undoubtedly in the course of a busy list. It is clear that she took an extremely serious view of the appellant's offending. Although she accepted that the calls were made to a random telephone number there were six or seven phone calls in all. They were made to a young girl who was at home alone and the nature of the phone calls escalated in seriousness.

11 The victim impact statement describes the traumatic effect that these phone calls had on the victim which "caused her to fear for her security". This was far from being a trivial matter and I fail to see any extenuating circumstances. The possible impact on the appellant's future employment is an unfortunate but inevitable consequence of his actions. Nor do I think the sentence was manifestly excessive. As the magistrate said, this is the type of offending which is difficult to detect and, as Olsson J described in Laxton v Justice (1985) 38 SASR 376 (in relation to social security fraud), calls for a deterrent penalty which, even in the case of a first offender, might warrant a custodial sentence.

12 Mr Slade compared the sentence in this case with that imposed in R v John Rae (CCA, 2 November 1998, SC (NSW), unreported), in which the telecommunication service had been used to inform Telstra there was a bomb in Woolworths which would detonate at a particular time. In that case, the Court imposed an immediate custodial sentence of six months. That does suggest that the sentence imposed in this case was severe but I am not persuaded that it exceeds the bounds of the sentencing discretion so as to be manifestly excessive. The appeal will be dismissed.

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