Bratasiuk v Police - [2011] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRATASIUK v POLICE
[2011] SASC 200
Judgment of The Honourable Justice Vanstone
18 November 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant pleaded guilty in the Magistrates Court to five counts of marking graffiti - appellant marked buildings, stobie pole and transformer box with felt-tipped marker - magistrate recorded convictions and sentenced appellant to six weeks imprisonment, suspended - whether magistrate erred in imposing a sentence of imprisonment - whether magistrate erred in recording convictions.
Held: appeal allowed - magistrate failed to explain why sentence of imprisonment was called for - appellant resentenced - convictions imposed on each count - appellant discharged upon condition that he enter into a bond to be of good behaviour and to come up for sentence if called upon.
Graffiti Control Act 2001 (SA) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16, s 39(1), referred to.

BRATASIUK v POLICE
[2011] SASC 200
Magistrates Appeal
VANSTONE J:
Introduction

The appellant pleaded guilty in the Magistrates Court to five counts of marking graffiti, contrary to s 9(1) of the Graffiti Control Act 2001 (SA). In the early hours of 26 June 2011 he marked three buildings, a stobie pole and a transformer box with a felt-tipped marker. The maximum penalty for each count is a fine of $2,500, or imprisonment for six months.
The magistrate recorded convictions and imposed one sentence of six weeks imprisonment. He suspended that sentence upon the appellant entering a bond to be of good behaviour for 18 months.
The appellant appeals against that sentence on the grounds that it is manifestly excessive and that the magistrate erred both in imposing a sentence of imprisonment and in recording convictions.
Background
The offences occurred over a period of some minutes, shortly after 4 o’clock on a Sunday morning. The appellant was in company with another young man who, he later claimed, was known to him and who he had run into by chance when leaving a farewell party. He had had a significant quantity of liquor. That man was apparently engaged in marking graffiti upon a stobie pole. The magistrate was told that the appellant accepted a texta marker from that man and, in his company, proceeded to mark some buildings in the east end of Adelaide. They were seen by a security guard who followed them and reprimanded them. Notwithstanding that, they continued in their activities before running into the east parklands. The security guard pursued them. A passing police car was hailed and police apprehended the appellant, but not his companion. The appellant refused to answer questions. Perhaps because the markings were made with a texta pen, no compensation was sought for their removal.
On the submissions made by the solicitor then acting for the appellant, the offences were committed over a very short time, were impulsive and caused rather minimal damage. In my view it would be correct to categorise them as other than at the higher end of the scale of such offending.
At the time of the offences the appellant was 27 years of age. The magistrate was told that he had been employed at a southern vales winery for some seven years, first as a cellar hand, but later as an assistant winemaker. He also had his own graphic design business for which he has a tertiary qualification.
This was not the appellant’s first appearance in the courts. In August 2002 a charge of damaging property was dismissed without penalty, but costs and compensation were to be paid. In March 2003 the appellant was fined for one count of receiving, but no conviction was recorded. In August 2004 the appellant was charged with marking graffiti. He was ordered to perform 40 hours of community service and to pay compensation in the amount of $100, but no conviction was recorded. In October 2008 he was dealt with for a number of driving offences including driving under the influence of liquor and he was convicted and fined and subjected to licence disqualification for 12 months. Thus it can be seen that, not only has the appellant been dealt with previously for a graffiti offence, but also, on that occasion as well as two others, he has had the benefit of the court’s discretion not to record a conviction.
Both in his exchanges with the solicitor then acting and in his sentencing remarks, the magistrate demonstrated rather a curious preoccupation with the graffiti situation (or lack of it) in Singapore. The remarks also seem to imply a dissatisfaction with the penalties customarily imposed in this jurisdiction for such offences. I set out the remarks in full.
Mr Bratasiuk is an intelligent, accomplished, well-educated man.
He should have known better.
I have heard about his wish to travel overseas. If he were to travel to Singapore, for example, he would not see one single example of the vandalism that is mis-described by its pseudo artistic name graffiti.
As I said, in the course of our discussion, it could be said that Singapore is a repressive and paternalistic society that we should not wish to emulate. Nevertheless the South Australian Parliament has said to the Courts, Adelaidians are sick of graffiti and they are expecting the Courts to fairly but firmly discourage this tediously prevalent activity.
That prevalence is undeniable proof that the Courts have not shown the energy or the courage to discharge the obligation that Parliament has given them. I think it is about time that they did.
That is not to say that Mr Bratasiuk is to be made a scapegoat for other offenders who have not been caught, but he does have a previous appearance for similar offending and it is not in the interests of the community that we should continue to indulge such offending by him or by others.
I find each of the counts proved. There will be a conviction and six weeks imprisonment which is suspended on Mr Bratasiuk agreeing to enter into a bond to be of good behaviour for 18 months in the amount of $50. The court fees are waived but there will be a levy and prosecution costs.
It may be noted that in the remarks no reference is made to the fact that the appellant pleaded guilty within about two and a half months of being charged. There is no explicit consideration of the impulsive nature of the acts and the minimal damage caused. There is no mention of why, having regard to the factors enumerated in s 11 of the Criminal Law (Sentencing) Act 1988, a sentence of imprisonment had to be imposed; and indeed no reference to where there was found good reason to suspend it.
Counsel for the appellant, Mr Coates, submitted that the magistrate overemphasised the significance of the prevalence of such offences and, despite the disclaimer, made the appellant a scapegoat for other offenders.
Consideration
In my view a sentence of six weeks imprisonment against a maximum sentence of six months imprisonment for each offence was a severe sentence for offending of this nature in these circumstances. Nothing in the remarks upon sentence indicates why the magistrate chose to view these offences quite so seriously. It is hard to discern from the remarks how the magistrate came to the decision that, notwithstanding s 11 of the Sentencing Act, a sentence of imprisonment, and one of that length needed to be imposed.
For these reasons it is necessary to set aside the sentence and impose penalty afresh.
Having said that, like the magistrate, I take these offences seriously. They show an anti-social disposition, which echoes the earlier behaviour leading to court appearances for similar conduct. I do not say that offending of this order could never attract a sentence of imprisonment. Rather, the magistrate has failed to explain – apart from the references to the Singapore experience – why he took the view that such a sentence was called for in respect of this offender.
Mr Coates has attempted to persuade me that no convictions should have been recorded. Standing against that submission is the leniency in the same form from which the appellant has previously benefitted. It is suggested that imposition of convictions might impede the appellant in any future overseas trips he is required to make in the course of his employment; although it is not claimed that there will necessarily be any such impact. That possibility remains a factor to be considered. However, the benevolent treatment in the past rather disqualifies the appellant from a like disposition. In any event, in view of the previous court appearance for a graffiti offence, it is difficult to be confident that the appellant is unlikely to commit another such offence under s 16 of the Sentencing Act. The forming of an opinion that the appellant is “unlikely to commit such an offence again” is a prerequisite to imposing a penalty without conviction. The previous court appearances of the appellant suggest an immaturity and irresponsibility which is puzzling, especially having regard to his stable employment situation and good education.
I have been told that the appellant is able to pay a fine and that he has already paid a significant amount in terms of the Victims of Crime Levy. However I consider a more appropriate penalty to be the imposition of a bond under s 39 of the Sentencing Act requiring the appellant to be of good behaviour and to come up for sentence if called upon. Hopefully this will bring home to the appellant that a repetition of this or similar conduct is likely to have serious consequences for him.
Conclusion
For these reasons the orders I make are as follows:
1.the appeal is allowed and the sentence imposed by the magistrate is set aside;
2.convictions are imposed on each count;
3.the appellant will be discharged upon his entering a bond pursuant to s 39(1) of the Sentencing Act in the sum of $200 to be of good behaviour for a period of three years and to appear before the court for sentence if the defendant fails during the term of the bond to be of good behaviour;
4.the order for payment of the Victims of Crime Levy and prosecution costs made by the magistrate will stand.