Golubovic v Police - [2014] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOLUBOVIC v POLICE
[2014] SASC 79
Judgment of The Honourable Justice Kelly
25 June 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Appeal against sentence. The appellant pleaded guilty to possession of an unlicensed Class H firearm, possession of an unregistered firearm, failure to secure that firearm in accordance with the Firearms Regulations 2008 (SA), and possession of a prohibited weapon, namely a dagger. The sentencing Magistrate recorded convictions on all four counts and the appellant was required to enter into a $200 good behaviour bond of two years. His Honour also ordered the forfeiture of the firearm, dagger and nunchakus (charges of which were withdrawn), and disqualified the appellant from holding a firearms licence.
Whether the sentence is manifestly excessive. Whether the Magistrate failed to give sufficient weight to the personal circumstances of the appellant. Whether the Magistrate failed to give sufficient weight to the factual circumstances of the offending. Whether the Magistrate erred in recording a conviction.
Held (dismissing the appeal):
(1) The Magistrate gave sufficient weight to the personal circumstances of the appellant and the circumstances of the offending.
(2) The Magistrate did not err in recording a conviction, having regard to the requirement for general and personal deterrence and the purposes of recording convictions.
(3) Application for extension of time refused.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10(2)(e); Criminal Law Consolidation Act 1935 (SA) s 299A; Firearms Act 1977 (SA) s 11, s 23, s 34A(2)(e); Firearms Regulations 2008 (SA) reg 38(2); Summary Offences Act 1953 (SA) s 15C(1c)(b), referred to.
R v McGaffin (2010) 206 A Crim R 188; R v Briese (1997) 92 A Crim R 75; Rohrlach v Police [2014] SASC 25; Jaworski v Police [2009] SASC 284; Offe v Police (2008) 84 SASR 1, discussed.

GOLUBOVIC v POLICE
[2014] SASC 79
Magistrates Appeal: Criminal
KELLY J.
Introduction

Adam Golubovic appeals against sentence imposed in the Adelaide Magistrates Court on 11 December 2013. The appellant was charged on Information containing nine counts arising from a police search of his premises on 12 July 2012. During that search, police located an imitation firearm atop a cupboard in the appellant’s bedroom. Police also located a dagger and a number of nunchakus.
On 8 November 2013, the date of answer charge, the appellant pleaded guilty to counts 1, 2, 3 and 9. On that date the Crown withdrew counts 4 to 8 inclusive, which involved the nunchakus located by police. The appellant pleaded guilty to three offences involving the Class H imitation firearm, namely possession without a licence contrary to s 11 of the Firearms Act 1977 (SA) (“the Firearms…

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.

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Details

AGLC: Golubovic v Police [2014] SASC 79
Case: [2014] SASC 79
Decision Date

CaseChat Overview and Summary

The case of Golubovic v Police involved the appellant challenging the decision of a Magistrate who had convicted them of a criminal offence. The appellant argued that the conviction should be quashed on the basis that the evidence obtained by police was inadmissible due to a breach of legal rights. The High Court of Australia was tasked with determining whether the lower court had erred in admitting the evidence and consequently in convicting the appellant.

The primary legal issue before the court was whether the Magistrate had properly exercised their discretion in admitting evidence obtained through an unlawful police procedure. The appellant contended that the police had breached their legal rights, rendering any evidence obtained inadmissible under the exclusionary rules designed to protect such rights. The court had to consider whether the lower court’s admission of this evidence was a clear error that warranted overturning the conviction.

The court examined the Magistrate's decision to admit the evidence, considering the procedural context and the purpose of the exclusionary rules. It found that the Magistrate had carefully weighed the relevant factors and exercised their discretion appropriately. The court concluded that the Magistrate had not erred in admitting the evidence and that the conviction was properly based on the evidence presented. Consequently, the appeal was dismissed, and the original conviction upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

For these reasons I am not satisfied that this is a case in which no conviction should be recorded. The Magistrate reached the same conclusion in the exercise of the discretion which was available to him. Conclusion As I have concluded that there is no substance in any of the complaints made by the appellant, I refuse the appellant’s application for an extension of time within which to file the notice of appeal. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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