GRAY v Police - [2005] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRAY v POLICE
Judgment of The Honourable Justice Anderson
23 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - REHABILITATION
ABORIGINALS - CRIMES BY ABORIGINALS - SENTENCE - FACTORS TO BE CONSIDERED
Appellant charged with failure to comply with bail conditions and two counts of disorderly behaviour - appellant an 18 year old Aboriginal man - Magistrate entered convictions in relation to all three offences - question of whether the Magistrate erred in failing to exercise the discretion under s16 of the Criminal Law (Sentencing) Act 1988 not to record a conviction - question of principles to be applied in sentencing an Aboriginal offender - consideration of the appellant's propsects of rehabilitation - appellant had no relevant offender history - held: considerations of rehabilitation provide a good reason for not recording convictions for any of the offences - appeal allowed.
Criminal Law (Sentencing) Act 1988 s16; Young Offenders Act 1993 s58, referred to.
R v Clarke (2004) 89 SASR 13, discussed.

GRAY v POLICE
[2005] SASC 99
Magistrates Appeal - Criminal

Anderson J In this matter, the appellant appeals from a decision of a Magistrate given on 11 January 2005 at Port Lincoln. The appeal is solely against penalty.
The appellant seeks an extension of time on the basis of a slight delay occasioned by difficulties within the Aboriginal Legal Rights Movement office in Port Lincoln. The respondent does not suggest any prejudice, and did not oppose the extension of time. I therefore granted the appellant the extension.
The sole ground of appeal is that the learned Magistrate erred in not exercising the discretion pursuant to s16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), and should not have recorded a conviction in this matter.
Section 16 states:
“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.”
The appellant was charged on three counts, the first alleging that on 25 December 2004 at Port Lincoln he failed to comply with conditions of bail previously entered into by him some two days before; secondly on 18 December 2004 at Port Lincoln he behaved in a disorderly manner in a public place; and thirdly, that on 22 December 2004 at Port Lincoln he similarly behaved in a disorderly manner in a public place.
The bail condition imposed, which was subsequently broken by the appellant, was that he was not to attend the central business district in Port Lincoln comprising Tasman Terrace and Liverpool Street, and including the foreshore area, between the hours of 9 pm and 7 am each day. He was found in that area by police, and told the police officers that he had hidden in a drain because he was being chased by some of his relatives.
In relation to the disorderly behaviour charge on 18 December 2004, the appellant was involved with another male in a fight on Tasman Terrace which was broken up by the police. He was intoxicated at this time. Finally, in relation to the disorderly behaviour charge on 22 December where he was involved in another altercation, also on Tasman Terrace, and ran away as the police approached him. He had assaulted another male by standing over him and kicking him.
The Magistrate was incorrectly informed of a caution which had been issued in the Adelaide Youth Court on 23 December 2002 for disorderly behaviour. That offence had occurred on 11 November 2002, but the respondent conceded in this appeal that it should not have been mentioned because of the provisions of s58 of the Young Offenders Act 1993 (SA). The appellant had some prior history, but not related to behavioural offences. The offences were mainly related to traffic convictions.
In relation to the two disorderly behaviour offences, the Magistrate ordered that a conviction be recorded without further penalty because the appellant had spent some time in custody. In relation to the breach of the bond conditions, he ordered that a conviction be recorded, and that the appellant perform forty hours of community service within a period of three months.
At the time the appellant was sentenced by the learned Magistrate he was eighteen years of age. The appellant is an Aboriginal man, and submissions were made on his behalf to the Magistrate regarding the circumstances of the offences. It appears that the appellant had grown up in Elizabeth. He was one of six children and had attended high school to Year 10. He had come over to Port Lincoln to stay at his sister’s place for Christmas, the family having connections with the west coast and the Port Lincoln Aboriginal community.
The breach of bail offence resulted from a family disagreement at Christmas time which led to the appellant being chased by his family members, and then having to spend some five hours in custody on Christmas Day. He had also spent five hours in custody on each of the previous two occasions relating to the other offences.
It was submitted to the Magistrate as part of the plea in mitigation that at the time of sentencing, he was in receipt of a youth allowance. As part of his receiving the youth allowance, he had some prospect of employment through the local employment agency and Centrelink. He was hopeful that he might obtain work in the Port Lincoln area.
The appellant had previously been part of an under-seventeen Aboriginal football club in Port Lincoln. This was known as the Mallee Park Football Club, and was suggested as the first Aboriginal Football Club in Australia, and an important part of the local Aboriginal community structure. The appellant is still keen on his football.
It was put to the Magistrate that he has suffered considerable shame within his community because of what happened around the Christmas period, and this is a relevant factor in relation to his sentencing.
The issue, it seems to me, comes down to assessing his prospects of rehabilitation as against the recording of a conviction, and whether it was appropriate to record such a conviction for his first attendance in the adult court. I have no doubt that his employment prospects would be severely jeopardised by the recording of a conviction.
The question of sentencing in relation to Aboriginal offenders has been dealt with by the Full Court in R v Clarke (2004) 89 SASR 13. In that matter, the court said at [22]:
“It is clear that an Aboriginal offender cannot expect special treatment just because he or she is Aboriginal: Wanganeen v Smith (1977) 73 LSJS 139; R v Fernando (1992) 76 A Crim R 58; R v Smith (2003) 86 SASR 132. However, as those cases acknowledge, aboriginality may be relevant to the sentencing process in a particular case. It is to be expected that in many cases the aboriginality of an offender will be a relevant and important factor in the sentencing process. Many Aboriginal people are marginalised by society and lack opportunities that are more available to others. For many, realisation of legitimate expectations is unlikely. In many cases, there is an inability to fit in with the non-Aboriginal community which contributes to isolation and dissatisfaction. However, those general and other similar observations may not be applied as a matter of course.”
In this case, I regard the Aboriginal background of the appellant as a relevant matter. I believe that in this case it is an important factor in the sentencing process. I believe his rehabilitation would best be served without the convictions being recorded.
It was not suggested that the offences were trifling, but under s16 of the Sentencing Act, and in particular under s16(b)(i) and (iii), it is my view that good reason does exist for not recording a conviction. I consider that there are proper grounds for disturbing the decision of the learned Magistrate albeit that it is based on a wide discretion. I am particularly influenced by the fact that the appellant has no relevant offender history. He is a young Aboriginal man in a regional area, and his chances of obtaining employment, which is an important part of his rehabilitation, will be enhanced without a conviction recorded against him. A conviction will make any chance of obtaining employment more difficult both in the short term and the long term.
I consider that the rehabilitation of this young man is in the public interest in the circumstances of this case. I therefore order that pursuant to the provisions of s16 of the Sentencing Act no conviction should be recorded in relation to any of the offences.