Budnjo v Police

BUDNJO v POLICE
[2003] SASC 14
Magistrates Appeal

Gray J This is an appeal against sentence.
Amir Budnjo the appellant was charged with driving a motor vehicle without first obtaining the consent of the owner[1]. On 1 October 2002 he pleaded guilty. During negotiations with the police the appellant came to an arrangement whereby he would pay $1,030 reparation. As a result a second count of property damage was withdrawn for want of prosecution.[2]
[1] The complaint was in the following terms:
[2]“On the 1st day of April, 2002 at Second Valley in the said State intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing tht no such lawful authority existed [Amir Budnjo] damaged one golf buggy and the golf course greens and bunker the property of the Wirringa Resort, such damage amounting to not more than $2,000.
Section 85(3) of the Criminal Consolidation Act, 1935.
This is a summary offence.”
The appellant and his school friends were staying at the Wirrina Cove Resort. Some time during the late evening possibly at around midnight the appellant was involved in “a drunken prank which went horribly wrong”. The appellant took a golf cart without permission and drove it around the resort’s golf course for 30 to 40 minutes.[3] An identification card belonging to the appellant was located the following morning in a bunker.
[3] The resort’s golf carts had been secured at 6:00 pm however they still had their keys in the ignition. The buggies were outside the appellant’s accommodation and could be seen through the window.
The appellant was interviewed and acknowledged his actions. He was extremely embarrassed. His behaviour was out of character and he regretted what occurred. He was 19 years of age. He was a first offender. He was a full time student and was casually employed at a local supermarket.
The prosecutor made no submissions as to penalty.
The magistrate sentenced the appellant to two months imprisonment but suspended that sentence on the condition that the appellant enter into a bond for 18 months. The only term of the bond was that he be of good behaviour. The magistrate also disqualified the appellant from holding or obtaining a driver’s licence for 12 months. The magistrate’s remarks included:
“The defendant has no previous court appearances and this is the third occasion the matter has come before the court. The compensation is agreed…
The defendant’s submission, through [defence counsel] is to the effect that this was a drunken prank which went horribly wrong when the defendant was with friends. He is a full time student at tafe involved in a marketing course and is employed by IGA supermarkets. I note the submissions in detail.
The defendant will be convicted of this offence. I give a 20% credit for the fact that he has no previous court appearances. The defendant is convicted and sentenced to a period of two months imprisonment which will be suspended on him entering into a recognizance that will require that he be of good behaviour for a period of 18 months. I disqualify the defendant from holding or obtaining a driver’s licence for a period of 12 months, commencing 12.01 am on 2 October 2002.[4]”
[4] The magistrate’s remarks also included:
“There will be court fees of $84.50, levy $28 and prosecutor’s fee, making a total of $128.50.Pursuant to section 53 of the Sentencing Act, I order that the defendant pay the sum of $1,030 to the registrar of this court for transmission to the party whose particulars the prosecutor has done or will provide.”
Issues on Appeal
Counsel for the appellant complained that the sentence was manifestly excessive. It was said that the magistrate erred in imposing a period of imprisonment. It was contended that he failed to consider alternatives to imprisonment, failed to give effect to section 11 of the Criminal Law (Sentencing) Act 1988 (SA) and failed to give adequate weight to the circumstances of the offending and the appellant’s personal antecedents including his unblemished record.
Was an Imprisonment Order Appropriate
Although the sentence of two months imprisonment was suspended there was no indication that the magistrate considered the utility of other sentences. He did not articulate in his sentencing remarks why he believed that imprisonment was the appropriate sentence for a 19 year old first offender. The magistrate did not address the effect that a sentence of imprisonment would have on the appellant. The magistrate did not find the appellant’s conduct was so grave that it necessitated imprisonment. He did not use words such as “serious” or “grave” in describing the conduct to indicate that this was his view. To the contrary the magistrate accepted that this was a “drunken prank which went horribly wrong.” Counsel for the Crown accepted that it was difficult to see on what basis the magistrate imposed the sentence of imprisonment.
The appellant’s actions were not malicious. He was not motivated by anger, revenge, greed or personal gain. He was on vacation with friends at a beachside resort where alcohol was readily available. After consuming an excessive amount he engaged in immature and foolish behaviour.
Section 11 of the Sentencing Act provides:
“(1) A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)     the defendant has shown a tendency to violence towards other persons; or
(ii)    the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)   the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)    any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)     if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2)…”
The circumstances of this case do not readily align themselves with the criteria specified in section 11(1)(a). As earlier observed the appellant had no prior convictions for violent offending. This was not an offence of violence. There was no evidence to indicate that the appellant had previously shown or showed a tendency to violence towards others. There was no evidence to indicate that if the appellant was allowed to go at large he was likely to commit a serious offence. He had not previously been punished by a sentence of imprisonment. He had an unblemished record. Section 11(1)(b) had no application in this case.
The consequences of excessive alcohol consumption on young people on vacation are well known. There appears to be a combination of factors which led to the drunken incident in this case including the appellant’s age and relative immaturity, the fact that the conduct appears to have been peer driven and that the consumption of alcohol occurred in an environment in which resort patrons were encouraged to consume alcohol. Although alcohol is no excuse for the appellant’s offending in this case it offers an explanation. The appellant should have been sentenced on a factual basis consistent with the magistrate’s finding that this was “a drunken prank.”
Having regard to section 11(1)(a) it cannot be said that any sentence other than imprisonment would have been inappropriate having regard to the gravity of the offence. The gravity of the appellant’s conduct in this case was not such that a sentence of imprisonment should have been imposed.
Sentencing Options
The magistrate had a range of sentencing options available to him other than imprisonment. These included dismissing the charge without penalty, imposing a penalty but declining to record a conviction, imposing a fine, imposing a community service order, increasing the period of licence disqualification over and above the mandatory 12 months, requiring additional reparation and imposing a bond with terms aimed at addressing the cause of the appellant’s offending either with or without conviction. It was also open to the magistrate to create a sentencing package that included a combination of one or more of these options.
The utility of each of these sentencing options on their own or in combination with each other should have been considered. The magistrate should have considered the effect of each possible sentence on the appellant having regard to the fact that he was a first offender who was studying full time, and only 19 years of age. The magistrate did not explain why he imposed a period of imprisonment or why any or all of the other sentencing options were inappropriate in this case. The magistrate failed to consider other sentencing options. He erred in failing to have regard to relevant considerations.
Should a Conviction have been Imposed
The magistrate’s failure to consider other sentencing options resulted in him overlooking the utility of section 16 of the Sentencing Act[5]:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion-
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to-
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
[5] Counsel for the appellant accepted that it was not put to the magistrate that he should exercise his discretion pursuant to section 16. It was said that this was because it was thought that the matter was not serious enough to warrant a conviction. However on appeal it was accepted that illegal use was a serious matter and that he had not been instructed to make a section 16 submission to the magistrate.
The magistrate did not explain why he imposed a conviction or address the impact that this order would have on the appellant. A conviction has the potential to seriously affect an individual’s future. The impact of imposing a conviction on a young person in a similar position to the appellant was recently considered by this court in Yengi v Police[6]. A court should carefully consider the impact of imposing a conviction on an offender particularly a young first offender. The magistrate failed to have regard to this relevant consideration.
[6] [2002] SASC 220
Had the effect of a conviction been considered after having regard to the appellant’s previous good character, his lack of criminal antecedents, his age, the fact that he was undertaking full time tertiary studies and that he was employed the magistrate may well have been persuaded to exercise his discretion in the appellant’s favour. As earlier observed the appellant was just embarking on his university course. He was employed and sought to gain a tertiary qualification in the field of marketing. The discretion not to record a conviction was a discretion that should have been exercised in this case. Given the appellant’s insight into his offending and the nature of the conduct it was unlikely that he would again commit such an offence. Good reason existed for not recording a conviction.
An affidavit provided by the appellant on the hearing of the appeal confirmed the above and provided further information about the effect that a conviction would have on the appellant. The affidavit included:
“It is my intention to progress with my studies [Certificate in Marketing] to the level of obtaining a tertiary degree. I am to graduate with a Bachelor of Business, awarded from either the University of South Australia or Edith Cowan University. I have now completed my first year of studies…My post-study goal is to gain employment in the marketing field. Given the marketing industry is global, it may be that overseas travel would be required in any position of employment achieved. In that regard, a conviction recorded against my name for an offence of dishonesty has the potential to prejudice and disrupt my prospects for employment in my chosen field, as some countries do not issue entry visas for persons with criminal convictions.”
The affidavit was relevant in the event that this court re-sentenced the appellant.
Rehabilitation - The Terms of the Bond
When young people are involved in criminal activity the importance of rehabilitation has been repeatedly recognised by the courts.[7] There is no indication that the magistrate in the present case considered the need for the appellant’s rehabilitation. The magistrate’s reasons are silent on this important issue. It was erroneous to proceed in the absence of a consideration of how the court could best facilitate the appellant’s rehabilitation. It appears that this was a one off excursion into criminal activity and there was no evidence that his behaviour would be repeated. Counsel for the appellant submitted to the magistrate and again on appeal that the appellant was both shocked and embarrassed by his behaviour and that he now understands the consequences of alcohol induced conduct. The community is best protected against further offending by the appellant’s rehabilitation.
[7] The Queen v Avgoustinos [1975] 13 SASR 48 at 49; R v Weaver (1973) 6 SASR 265 at 267; Vartzokas v Zanker (1988-89) 51 SASR 277 at 279
As earlier observed the magistrate suspended the appellant’s sentence of imprisonment on the condition that he enter into a bond to be of good behaviour for a period of 18 months. However that was the bond’s only term. The magistrate did not order that the appellant be supervised by a community corrections officer for the period of the bond or that he undergo courses in alcohol and drug use or driving related courses. These were terms that may well have addressed the appellant’s rehabilitation needs. The bond provided the magistrate with a useful tool through which he could have fashioned a sentencing package to address the appellant’s rehabilitation needs. The magistrate’s failure to consider the rehabilitation of the appellant was an error.
Licence Disqualification
As earlier observed the magistrate disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months. This was a mandatory order. The 12 months imposed was the minimum term that could be imposed pursuant to section 86A(2) of the Criminal Law Consolidation Act 1935 (SA). Section 170 of the Road Traffic Act 1961 (SA) further provides the court with a general discretion to disqualify a person from driving in relation to any criminal offence involving a motor vehicle:
“If a court of summary jurisdiction, on information or complaint duly laid, is satisfied that a person has used, or is likely to use, a motor vehicle in connection with the commission of any offence by the person or any other person or to facilitate the escape of the person or any other person from arrest or punishment, it may order that the person who used, or is likely to use, the vehicle be disqualified for a period fixed by the court or until further order from holding or obtaining a driver's licence.”
It was accepted that the golf cart driven by the appellant came within the definition of a motor vehicle:
“a vehicle built to be propelled by a motor that forms part of the vehicle.”[8]
[8] Section 5 of the Road Traffic Act
While the magistrate was obliged to order the 12 month disqualification there is no indication that he considered the impact that this order would have on the appellant, his education or his employment. This was a relevant consideration given that the magistrate was exercising a discretion when constructing the appellant’s total sentence. There is a risk that the total sentence imposed was disproportionately high as a result.
Reduction for Guilty Plea
The magistrate’s remarks included:
“The defendant has no previous court appearances and this is the third occasion the matter has come before the court….I give a 20% credit for the fact that he has no previous court appearances.”
It is settled that the court has a discretion to make a reduction in sentence on account of a timely plea of guilty. The primary consideration is the timing of a plea. As a general rule the earlier the plea the greater the reduction. However each case must be judged on its own facts and an appropriate reduction made in the particular circumstances arising. It is important that the fact and extent of the reduction be specified[9].
[9] Cameron v R (2002) 187 ALR 65; R v Wall (2000) 209 LSJS 135
It is unclear exactly what the magistrate was trying to achieve when he gave a “20% credit” for the appellant’s lack of “previous court appearances”. If the magistrate was attempting to give the appellant credit for being a first offender then his approach was flawed. There is no scope for “credit” to be given in this way for this reason. It is settled that the fact that someone is a first offender is relevant to sentence and is mitigatory in nature. However to speak of a percentage adjustment to achieve this end is adopting a mathematical approach to sentencing that is inappropriate.[10] If the magistrate was using the appellant’s number of previous court appearances to suggest that it somehow affected the timeliness of his plea then this too was an incorrect approach. When negotiations are on foot, the number of court appearances a defendant has prior to a plea of guilty is not necessarily a basis on which to justify a lesser reduction in sentence than may otherwise have been given.
[10] Wong v R (2001) 207 CLR 584 at [74] per Gaudron, Gummow and Hayne JJ.
Whilst the appellant had appeared in court a number of times prior to his plea it appears from the file that this was due to the granting of an adjournment to enable legal advice to be sought and a dispute about the amount of damage resolved. At least as early as 7 June 2002 it appears that the appellant was willing to plead guilty to count 1. The court records suggests that the matter was adjourned that day until 21 June 2002 “for guilty plea”. The appellant was entitled to dispute the damage particularised in count 2. Any minor delay in the plea to count 1 appears to have been occasioned by the disagreement in relation to count 2.
As earlier observed the appellant was a first offender. As the magistrate noted he acknowledged his involvement in the incident when interviewed at a time proximate to the incident. He pleaded guilty at an early stage. There was no reason why the appellant should not have been afforded an appropriate reduction on account of his plea. This would have resulted in a reduction in the order of 25% being made. The appellant lost the benefit of his early plea. It was not properly brought to account by the magistrate.
Conclusion
The magistrate has failed to have regard to relevant considerations and has had regard to irrelevant considerations. Error has been demonstrated. The appellant must be re-sentenced. Both counsel agreed that it is appropriate for this court to perform this task.
Re-Sentence
Although counsel for the Crown contested the appeal it was submitted that if error was demonstrated then the Crown was supportive of a bond being imposed with a condition that required the appellant to abstain from alcohol consumption. Counsel for the appellant observed:
“If [the appellant] is curbed from consuming alcohol for a period of time then that probably gives him time to reflect also on whilst his friends might be out having a good time and having some drinks, having him stand there sober as it were, would have the desired effect. Also there’s personal deterrence, there’s some punishment involved in that type of order.”
Both counsel agreed that this would be striking at the cause of the offending.
The amount of reparation was agreed in this case. It was appropriate to make a reparation order in the agreed amount. The licence disqualification was mandatory.

The circumstances of the appellant’s offending and his personal antecedents have been earlier recounted. Having regard to the appellant’s youth, prior unblemished record and the fact that this incident was a “drunken prank gone wrong” it is appropriate to proceed without conviction. The licence disqualification and reparation orders imposed by the magistrate represent significant punishment. Those orders will remain in place. The appellant is to enter into a bond without conviction. The terms of the bond are that the appellant be under the supervision of a community corrections officer for a period of one year and that he obey the lawful directions of that officer; that he undergo such courses in driving safety education and alcohol and drug use as may be directed by his community corrections officer; that he abstain from consuming any alcohol and any non-medically prescribed drugs for a period of six months.
The orders of the court are that:
-       the appeal is allowed.
-       the conviction is set aside.
-the appellant is to enter into a bond for a period of one year on the forgoing terms.
-       otherwise the orders of the magistrate remain in force.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1      The complaint was in the following terms:
“On the 1st day of April, 2002 at Second Valley in the said State [Amir Budnjo] drove a motor vehicle without first obtaining the consent of the Wirrina Resort the owner thereof.
Section 86a of the Criminal Law Consolidation Act, 1935.
This is an summary offence.”
2      “On the 1st day of April, 2002 at Second Valley in the said State intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing tht no such lawful authority existed [Amir Budnjo] damaged one golf buggy and the golf course greens and bunker the property of the Wirringa Resort, such damage amounting to not more than $2,000.
Section 85(3) of the Criminal Consolidation Act, 1935.
This is a summary offence.”
3      The resort’s golf carts had been secured at 6:00 pm however they still had their keys in the ignition. The buggies were outside the appellant’s accommodation and could be seen through the window.
4      The magistrate’s remarks also included:
“There will be court fees of $84.50, levy $28 and prosecutor’s fee, making a total of $128.50.Pursuant to section 53 of the Sentencing Act, I order that the defendant pay the sum of $1,030 to the registrar of this court for transmission to the party whose particulars the prosecutor has done or will provide.”
5 Counsel for the appellant accepted that it was not put to the magistrate that he should exercise his discretion pursuant to section 16. It was said that this was because it was thought that the matter was not serious enough to warrant a conviction. However on appeal it was accepted that illegal use was a serious matter and that he had not been instructed to make a section 16 submission to the magistrate.
6 [2002] SASC 220
7      The Queen v Avgoustinos [1975] 13 SASR 48 at 49; R v Weaver (1973) 6 SASR 265 at 267; Vartzokas v Zanker (1988-89) 51 SASR 277 at 279
8 Section 5 of the Road Traffic Act
9      Cameron v R (2002) 187 ALR 65; R v Wall (2000) 209 LSJS 135
10     Wong v R (2001) 207 CLR 584 at [74] per Gaudron, Gummow and Hayne JJ.

“On the 1st day of April, 2002 at Second Valley in the said State [Amir Budnjo] drove a motor vehicle without first obtaining the consent of the Wirrina Resort the owner thereof.
Section 86a of the Criminal Law Consolidation Act, 1935.
This is an summary offence.”

[2003] SASC 14

5 February 2003