Cominos v Police No. Scciv-04-111

COMINOS v POLICE
[2004] SASC 65
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against his conviction on a charge that on 26 March 2003 at Unley he unlawfully damaged two windows, contrary to s 85(3) of the Criminal Law Consolidation Act 1935.
The trial magistrate imposed a fine of $500 and ordered the appellant to pay compensation of $1000.
The appellant appeals against the sentence as well as against the conviction, claiming that the sentence was manifestly excessive.
The appellant was unrepresented at the trial and on the hearing of the appeal. He is a 64 year old man. Initially he was charged on two counts of damaging property but after hearing the prosecution case on both counts, the trial magistrate found that there was no case to answer on the second count.
The principal evidence given with respect to the charge now in question was that given by David Taylor, whose occupation is laboratory manager. At the time of the offence he was employed by a firm of pathologists known as Dr King and Mower Medical Pathology at premises on Greenhill Road at Wayville.
The damage to the two windows the subject of the count upon which the appellant was convicted, is alleged to have been to those premises.
Mr Taylor is responsible for after hours maintenance of equipment at the premises. On the night in question he received a call to attend an equipment failure. While at the premises responding to the call, just after midnight, he heard a loud bang which seemed to emanate from the front of the building, that is, the frontage to Greenhill Road. He went to the front of the building and was about to look through the blinds when he heard another loud bang and was sprayed with glass. The two bangs were occasioned when two windows were broken. After the second bang, Mr Taylor looked through the blinds of the window when he saw a man walking towards a van nearby. The man climbed into it and drove off.
Mr Taylor raced back inside, collected some keys, then went to his own vehicle and drove after the van. The van stopped by some traffic lights, and he followed it when it moved off again. He saw the van stop in front of another large building whereupon he drove past it, stopped and called the police. He then saw the man get back into the van and drive off again, following which he resumed the pursuit.
The van then turned from Greenhill Road into Goodwood Road and proceeded through back streets in Edwardstown between Goodwood Road and South Road, eventually pulling into a Caltex service station on Daws Road.
The driver of the van emerged. Very shortly afterwards a police patrol car arrived. Mr Taylor identified the driver of the van to them. His evidence was that he was sure that the driver of the van was the appellant whom he identified in court.
Constable Andrew Goldsmith gave evidence to the effect that he was the driver of the patrol car which came to the Caltex service station, where he apprehended the appellant. While he was at the service station with the appellant, he was advised by police radio that a number of businesses on Greenhill Road had smashed windows. He questioned the appellant. He looked into the van, where he saw a rock.
Police investigations of buildings where windows had been broken revealed that they had been broken by rocks found inside the buildings.
More particularly, there were two rocks found in the premises in question, which clearly were responsible for the damage to the windows.
The appellant, Mr Cominos, gave evidence before the magistrate. He admitted that he was driving his van in the vicinity where he was first seen by Mr Taylor. He admits that he was followed by a vehicle but denied that it was Mr Taylor’s vehicle. More particularly, he denied that it was Mr Taylor who was at the Caltex service station. He said it was another man.
Be that as it may, he said that he had intended that night to travel to the city to a Shell service station in Hutt Street to buy a pasty. He changed his mind after stopping at Greenhill Road to urinate, and decided then to go to the service station at Clovelly Park, which is the service station where he was eventually apprehended. He denied throwing rocks at any windows and suggested that others could have placed a rock in his vehicle. However, he also said in evidence that “lots of people” carry rocks in their cars, and he answered further questions on that topic in a way which was understood by the magistrate to mean that he used rocks to prevent articles in his vehicle from moving.
In any event, the inconsistent explanations given by the appellant as to the rock found in the vehicle were regarded by the magistrate as lacking in credit. He ultimately held on the crucial issue as to the credit of the appellant that there was no reasonable possibility that his evidence was true. The magistrate held that the immediate pursuit of the appellant after the second breaking of a window in the subject premises and the close pursuit of him over some considerable distance, coupled with the finding of a rock in the vehicle, led him to conclude beyond reasonable doubt that the appellant was responsible for breaking the windows in question.
On the hearing of the appeal Mr Cominos maintained his denial of involvement in the offence. He emphasised that Mr Taylor never actually saw the man throw any rocks. He drew attention to the fact that in his own evidence he had said that there were two youngish men in the vicinity at the time, who made off when he approached, inferentially suggesting that perhaps they were responsible. He explained that he carried rocks in his vehicle to prevent objects from moving around. He further suggested that he slept in his vehicle and kept a lot of possessions there.
I have perused the evidence carefully. I explained to the appellant that this Court must work only on the basis of the transcript of the proceedings in the court below, together with any other evidence in the form of exhibits, in order to determine whether there was any error which should lead to interference by this Court.
I have carefully considered the evidence, but in my view there is no reason to doubt the soundness of the conclusion reached by the magistrate. He had the benefit of seeing and hearing the witnesses. Quite apart from that, the account given of the matter by the appellant was unconvincing.
I would dismiss the appeal against conviction.
As for the appeal against sentence, the magistrate remarked that the appellant came before the court with what he described as an unusual criminal history. He said that:
“The criminal record tendered by the prosecutor which you admit but tell me it is many years ago indicates that on 15 occasions you have either been found guilty or pleaded guilty to offences of property damage that relate to throwing stones rocks or bricks through glass windows and building premises.”
What the magistrate describes as a criminal record in fact appears to be a document headed “Police Apprehension Report” which contains details of alleged offences of damaging property of the kind described, but that record is not a record of prior convictions.
Separately, as an exhibit to an affidavit filed in this Court by the prosecutor, there is a copy of the police offender history report or antecedents report which contains records of prior convictions. There are a number of convictions dating back to 1969 but they are minor and only marginally relevant for present purposes. There is however one conviction in 1989 for damaging property which is relevant.
Despite the mistake made by the magistrate as to the nature of the police incident report, it seems to me that it could hardly be said that the penalty was manifestly excessive.
The appellant has a history of employment as a wool buyer, a horse trainer and a taxi driver. Since 1986 he has been receiving an age pension or unemployment benefit. At the time he appeared in the court below he had $46000 in an account at the ANZ Bank.
The maximum penalty for this offence, given the value of the property, was two years imprisonment.
It seems to me that the appellant has failed to demonstrate that the penalty imposed is manifestly excessive. On the contrary, in my view it seems to be a modest penalty given the nature of the offence.
I dismiss the appeal against conviction and sentence.
There will be no order as to the costs of the appeal.

[2004] SASC 65

4 March 2004