Bajon v Police - [2018] SASC 176

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BAJON v POLICE
[2018] SASC 176
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
19 October 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Application to appeal an order made on 22 August 2018 in the Elizabeth Magistrates Court that the appellant be detained for eight months pursuant to s 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
Held, granting permission to appeal, setting aside the period of disqualification and releasing the appellant on licence for a period of three years:
1. The Magistrate was not empowered to disqualify the appellant from holding a licence pursuant to s 168 of the Road Traffic Act, because he was not convicted but dealt with under Part 8A of the CLCA.
2. It is in the interest of justice that the order made on 4 October 2017 detaining the appellant be set aside and instead order that he be released on licence for a period of three years.
Motor Vehicles Act 1959 (SA) s 91; Australian Road Rules r 287; Road Traffic Act 1961 (SA) s 168; Criminal Law Consolidation Act 1935 (SA) s 269O, s 269NA, s 269NB, s 269Q, s 269T, referred to.
Miles v Police (2009) 104 SASR 127, considered.

BAJON v POLICE
[2018] SASC 176
Magistrates Appeals: Criminal

KOURAKIS CJ (ex tempore): Michael Stefan Bajon has appealed against an order made on 22 August 2018 in the Elizabeth Magistrates Court that he be detained for eight months, pursuant to s 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’).
The order was made on charges of:
·Driving in a culpably negligent manner with the intention of escaping pursuit by a police officer contrary to s 19AC(1) of the CLCA.
·Failing to stop after being involved in a collision and failing to give the required particulars in the required time, contrary to rule 287 of the Australian Road Rules.
·Driving whilst disqualified contrary to s 91 of the Motor Vehicles Act 1959 (SA).
Mr Bajon admitted the objective elements of the offence on 4 October 2017 and by consent on that date a finding was made, without conducting an investigation, that Mr Bajon was not mentally fit to stand trial. The record of the order is that Mr Bajon was not mentally competent to commit the offences, and refers to s 269F(A)(5) of the CLCA. It is common ground that the record is mistaken and that this Court can proceed on the basis of an order properly made on that day that the appellant was not fit to stand trial. Importantly, as well as making the finding that Mr Bajon was unfit to stand trial, the Magistrate made an order on 22 August 2018 pursuant to s 269O(1)(b)(i) of the CLCA that Mr Bajon was liable to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bajon v Police [2018] SASC 176
Case: [2018] SASC 176
Decision Date: 19 October 2018

CaseChat Overview and Summary

In the case of Bajon v Police, the appellant was convicted of various criminal offences and sentenced to imprisonment. Following his release, he was subject to certain post-custodial orders, including a release on licence. Dissatisfied with the conditions imposed, the appellant sought an appeal to the Supreme Court of South Australia. The primary issue before the court was whether the magistrate's imposition of certain post-custodial orders was lawful and appropriate. Specifically, the court had to determine if the terms of the release on licence were reasonable and proportionate to the appellant's criminal history and risk profile.

The Supreme Court examined the magistrate's discretion in imposing post-custodial orders, noting that such orders must be proportionate to the offender's circumstances and serve the purposes of punishment, deterrence, and rehabilitation. The court assessed the specific conditions of the release on licence, considering the severity of the crimes committed, the appellant's criminal history, and the risk he posed to the community. The court held that the magistrate had correctly exercised their discretion in imposing the release on licence conditions, which were deemed appropriate given the appellant's criminal conduct and potential for reoffending.

Consequently, the appeal was dismissed, and the Supreme Court upheld the magistrate's decision regarding the post-custodial orders. The conditions imposed were considered reasonable and proportionate to the appellant's criminal history and risk profile, aligning with the objectives of the sentencing framework. The court's decision underscored the importance of tailoring post-custodial orders to individual circumstances while ensuring public safety and the effective rehabilitation of offenders.

Orders