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

1. 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

2. 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 s 20(3) of the Criminal Law Consolidation Act 1953 (SA) (“the CLCA”) and aggravated pursuant to s 5AA(1)(g) of the CLCA, as the victim, Mrs Gilev, was the appellant’s spouse.

3. On 10 May 2013, the appellant appeared, represented by legal counsel, in the Holden Hill Magistrates Court. The factual basis of the offending was put to the Court by the Police Prosecutor, in accordance with the relevant Apprehension Report, and the appellant pleaded guilty to one count of aggravated assault on this basis. The presiding Magistrate proceeded directly to sentencing submissions and counsel for the appellant made submissions outlining the appellant’s good character and tendered several character reference letters on the appellant’s behalf.

4. In sentencing the appellant, the Learned Magistrate exercised her discretion under s 39 of the Criminal Law (Sentencing) Act1988 (SA) (“the CLSA”), finding good reason to discharge the appellant without penalty, upon him entering into a two-year good behaviour bond. However, the Learned Magistrate concluded that the seriousness of the appellant’s offending coupled with the importance of personal and general deterrence warranted a recording of a conviction against him. It outweighed any mitigating factors related to the factual circumstances of the offending or the appellant’s personal circumstances. Her Honour stated in her sentencing remarks:

   …It is an offence of violence against your wife and the courts, you know, certainly deal with it seriously. Offences of this kind must be dealt with in a manner which deters not only you, but others from similar offending. You struck her in front of two police officers after she had called the police for assistance. You were in a rage and told the police they should not interfere because it was an issue between husband and wife.

   I do not consider it would be appropriate to proceed without a conviction. This is an offence of violence…despite the character references and the fact you have no previous convictions, I consider a conviction should be recorded.

   Appeal

5. The appellant now argues that the sentencing Magistrate erred in recording a conviction against the appellant. He argues that in light of the circumstances of the offending and the appellant’s personal circumstances, the Magistrate ought not to have imposed the conviction. The appellant argues that the sentencing Magistrate failed to take into account, or alternatively, failed to give adequate weight to, several mitigating circumstances which were directly relevant to the question of whether or not it was appropriate to impose a bond without conviction.

6. In relation to the personal circumstances of the appellant, the appellant’s counsel, Mr Richards, argues that the Magistrate failed to consider that a conviction would make it especially difficult for the appellant to gain employment, namely because his capacity to be self-employed was limited because of a spinal injury. Mr Richards relied on the fact that there was no mention of this particular matter in the Learned Magistrate’s sentencing remarks. Mr Richards concedes that there is no material to suggest that any such submission was in fact put to the sentencing Magistrate. Nevertheless, he argues that by not mentioning it in her sentencing remarks, her Honour failed to consider the question of difficulty in gaining employment and thereby erred.

7. 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

8. I dismiss the appeal.