Gregg Jonathon Barclay v Constable Adam Drummond West

GREGG JONATHON BARCLAY v CONSTABLE ADAM DRUMMOND WEST [2001] ACTSC 89 (7 SEPTEMBER 2001)

CATCHWORDS

APPEAL – discretion of court not to record a conviction – whether error demonstrated – requirement to give reasons – sufficient indication of basis of decision.

Crimes Act 1900 (ACT), s 26, s 556A, s 556B

Cobiac v Liddy (1969) 119 CLR 257
Shubsole v Rodriguez (1978) 18 SASR 233
Pillage v Coyne [2000] WASCA 135
Beale v GIO of NSW (1997) 48 NSWLR 430

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 44 of 2001

Judge:          Gray J
Supreme Court of the ACT
Date:           7 September 2001

IN THE SUPREME COURT OF THE     )
  )          No. SCA 44 of 2001
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:GREGG JONATHON BARCLAY

Appellant

AND:CONSTABLE ADAM DRUMMOND WEST

Respondent

ORDER

Judge:  Gray J
Date:  7 September 2001
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from a conviction by the ACT Magistrates Court of the appellant on a charge of common assault, an offence under s 26 of the Crimes Act 1900 (ACT) punishable by imprisonment for two years.

1. The appellant was convicted and, pursuant to s 556B of the Crimes Act, released without sentence being passed upon him entering into a recognisance in the sum of $1,000.00 to be of good behaviour for a period of two years and on condition that he pay the court costs and pursue appropriate relationship counselling.

1. The appeal was instituted as an appeal from the Magistrate’s decision asserting that “the decision is manifestly excessive”. To make good this ground, in written submissions before me it was argued that the fact of a conviction was a penalty in itself and that to impose it was disproportionate to the gravity of the offence. That approach seems to me to be flawed when, on a plea of guilty, the issue of whether a conviction be recorded or not is dealt with in a particular way by s 556A of the Crimes Act.  That section provides:

“556A  Conditional release of offenders without proceeding to conviction

(1)       Where –

(a)a person is charged before a court of the Territory with an offence against a law of the Territory;  and

(b)The court is satisfied that the charge is proved but is of opinion, having regard to –

(i)the character, antecedents, age, health or mental condition of the person;  or

(ii)the extent (if any) to which the offence is of a trivial nature;  or

(iii)the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;

the court may dismiss the charge or, without proceeding to conviction, by order, direct that the person be discharged upon his or her…