Gilev v Police - [2013] SASC 108

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
GILEV v POLICE
[2013] SASC 108
Judgment of The Honourable Justice David (ex tempore)
4 July 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against sentence - whether Magistrate erred in recording a conviction against the appellant - whether Magistrate failed to consider the difficulties in gaining employment that a recorded conviction would incur for the appellant.
Held: It was well within the Magistrate's sentencing discretion under s 39 of the Criminal Law (Sentencing) Act 1988 (SA) to record a conviction against the appellant - the omission of any particular reference to the matter of employment difficulties in the Magistrate's sentencing remarks does not, in itself, indicate that the matter was not properly considered - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g), s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 39, referred to.

GILEV v POLICE
[2013] SASC 108
Magistrates Appeal: Criminal

DAVID J (ex tempore): This is an appeal against the decision of a Magistrate to record a conviction against the appellant. On 10 May 2013, the appellant pleaded guilty to one count of aggravated assault. By way of sentence for this offending, the appellant was discharged without penalty, upon him entering into a two-year good behaviour bond, and a conviction was recorded against him. The appellant now appeals against the Magistrate’s decision to record a conviction against him.
Background facts
The factual circumstances of the offending can be briefly stated. On the evening of 18 February 2013 the appellant was at his Gulfview Heights residence with his wife of twenty years, Evelina Gilev, and their three children. Shortly after 8pm, a disturbance at that residence caused Mrs Gilev to telephone the police. At approximately 9:15pm, Constable Melissa Smith and Constable William Walker arrived at the appellant’s residence. The two officers spoke with Mrs Gilev outside on the front driveway. Mrs Gilev reported to the officers that the appellant had committed an assault against her earlier that evening. The officers and Mrs Gilev were interrupted by the sound of a male yelling within the residence. The officers and Mrs Gilev approached the front door of the residence, which was then opened by the appellant. In the presence of the two officers, the appellant approached Mrs Gilev and slapped her across the face. The officers promptly arrested the appellant and conveyed him to the Holden Hill Police Station, where at approximately 10:11pm, a formal interview was conducted with the appellant and video recorded. The appellant chose not to answer any questions without legal representation. Subsequently, at about 11:45pm, police issued an Interim Intervention Order against the appellant, a copy of which was given to him and explained to him. The appellant was formally charged with aggravated assault.[1]
[1] Contrary 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.

Continue reading Gilev v Police

Details

AGLC: Gilev v Police [2013] SASC 108
Case: [2013] SASC 108
Decision Date: 4 July 2013

CaseChat Overview and Summary

The matter of Gilev v Police involved an appeal against a sentence imposed by a Magistrate in South Australia. The appellant, Gilev, was convicted of an assault offence and appealed the recorded conviction, arguing that the Magistrate failed to consider the employment difficulties a conviction would cause him. The appeal was heard by the Supreme Court of South Australia.

The primary legal issues before the court were whether the Magistrate erred in recording a conviction against the appellant and whether the Magistrate failed to consider the potential employment difficulties that a conviction would bring to the appellant. The appellant argued that the Magistrate's sentencing remarks were too brief and did not adequately address the employment impact of a conviction, which was a relevant factor in sentencing under s 39 of the Criminal Law (Sentencing) Act 1988 (SA).

The court found that the Magistrate's exercise of sentencing discretion was not flawed. The court assumed that the Magistrate had considered the employment difficulties, despite the brevity of the sentencing remarks. The court held that it was within the Magistrate's authority to record a conviction and that the absence of a specific reference to employment difficulties in the remarks did not mean the matter was not considered. Consequently, the appeal was dismissed.

The court's final orders confirmed that it was within the Magistrate's sentencing discretion to record a conviction against the appellant. The court held that the omission of a specific reference to employment difficulties in the Magistrate's remarks did not indicate that the matter was not properly considered. The appeal was dismissed, and the original conviction and sentence stood.

Orders

Orders of the court

Held: It was well within the Magistrate's sentencing discretion under s 39 of the Criminal Law (Sentencing) Act 1988 (SA) to record a conviction against the appellant - the omission of any particular reference to the matter of employment difficulties in the Magistrate's sentencing remarks does not, in itself, indicate that the matter was not properly considered - appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

In my view, the Learned Magistrate’s exercise of her sentencing discretion under s 39 of the CLSA has not miscarried. I assume that her Honour has considered the employment difficulties which a recorded conviction would incur for the appellant and the brevity of her Honour’s sentencing remarks alone is not sufficient to indicate otherwise. It was well within the Learned Magistrate’s sentencing discretion to record a conviction against the appellant for his offending and therefore there is no basis for interference by this Court.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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