Jason Scott Davies v SA Police No. SCGRG93/1833 Judgment No. 4314 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 4314

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Criminal law and procedure - general principles - offences against public order - appellant convicted of having behaved in a disorderly manner in a public place - penalty of four weeks' imprisonment suspended upon appellant entering into a good behaviour bond for thirteen months and performing eighty hours community service - nine month delay in lodging notice of appeal - application to extend time R3.04(d) of Supreme Court Rules - 'merits of the substantive issue in the proposed appeal' relevant to application for extension of time - sentence manifestly excessive - sentencing discretion miscarried - failure to have regard to Criminal Law (Sentencing) Act 1988, s.47(h) - application for extension of time granted - $300 fine imposed - appeal allowed. Summary Offences Act 1953 (SA) s.7 and Criminal Law(Sentencing) Act 1988 (SA) s.47(h). Allingham v Hayes (Unreported Judgment of von Doussa J delivered on 22/1/87); Davies v Lloyd (Unreported Judgment of Mullighan J delivered on 3/4/92) and Fiegert v Fauser (Unreported Judgment of Mullighan J delivered on 21/10/92), applied. Gordon v Smith (Unreported Judgment of Olsson J delivered on 30/7/92), considered.

HRNG ADELAIDE, 17 November 1993 #DATE 7:12:1993
Counsel for appellant:     Mr W R Retalic
Solicitors for appellant:    Barnfield Somerville Verlato
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 NYLAND J This is an application to extend the time for the filing of an appeal against a sentence imposed upon the appellant in the Court of Summary Jurisdiction sitting at Mount Gambier on the 15th day of January 1993. 2. At that time the appellant pleaded guilty to a charge that on the 1st of January 1993 he had behaved in a disorderly manner in a public place, namely Compton Street, contrary to s.7 of the Summary Offences Act 1953. 3. The appellant was convicted and sentenced to be imprisoned for a period of twenty-eight days which sentence was suspended upon him entering into a bond to be of good behaviour for a period of thirteen months and to perform eighty hours of community service within six months from the date of the bond. 4. Pursuant to provisions of Rule 96c.02 of the Supreme Court Rules the appellant was obliged to institute his appeal within fourteen days of the aforesaid order. The Notice of Appeal was not however lodged until the 30th of September 1993. Accordingly there is a delay of some nine months in instituting these proceedings. The appellant in his affidavit, which I received on the hearing of the application for extension of time, said that he was unrepresented at the time of the proceedings before the learned Special Magistrate. He said he had no idea that he would receive a sentence of imprisonment (even though it was suspended) and that he did not really think about the sentence at the time that it was imposed due to personal matters. On 23rd June 1993, however, he was arrested on a charge of driving whilst disqualified from holding or obtaining a driver's licence. Following his arrest for that offence, he was informed by his solicitor that the police would 2 be alleging a breach of the good behaviour bond entered into on the 15th of January 1993. 5. Rule 3.04(d) of the Supreme Court Rules provides that the Court may in any case which it thinks just to do so "extend or abridge any prescribed periods of time within or by which any step in a proceeding may be taken whether or not such period of time has expired". Clearly, therefore, there is a discretion in the Court to extend the time for the filing of this Notice of Appeal if it is just to do so. The respondent argued however that this application had only been brought because the appellant had breached his bond and that it was probable that the bond would be estreated. He submitted, therefore, that it was inappropriate to permit him to canvass these matters some nine months after the penalty had been imposed. 6. Counsel for the appellant argued, however, that if the appellant was now obliged to serve a sentence of imprisonment which ought not to have been imposed in the first place then this amounted to sufficient injustice for leave to be granted to resolve the matter to enable the appropriate remedies to be exercised. He referred to the decision of von Doussa J in Allingham v Hayes (Unreported judgment delivered on 22/1/87) in which an application for an extension of time was made pursuant to s.165 of the Justices Act. In that case von Doussa J said, at p.2: "One of the matters which I consider to be important in arriving at the conclusion that time should be extended, is the merits of the substantive issue in the proposed appeal." 7. And at p.6:
    "I do not consider that my granting an extension of
    time in these circumstances would impede the due 3
    administration of justice. On the contrary, if I did not
    exercise the discretion under s.165 in favour of the
    appellant, it might be thought that the due administration
    of justice has suffered, as the power existing under
    s.177(2)(c) to '... substitute... an order... which ought
    to have been made in the first instance' had not been
exercised." 8. With those remarks I respectfully agree. I consider therefore that in reaching a decision as to whether it is appropriate to extend time in this case it is appropriate first to consider the "merits of the substantive issue in the proposed appeal". 9. The appellant was charged with disorderly behaviour. The allegation made by the police prosecutor was that at about 3.12 a.m. on the 1st January 1993 police in Compton Street saw the appellant in the middle of the street yelling at other persons in the vicinity. He was cautioned and moved to the western footpath. At 3.15 a.m. he was observed by the police on the footpath fighting and struggling with several females and one male. He was also yelling abuse at them. He was then arrested. 10. The appellant, in his affidavit, said that at the time of this offence he was aged 20 years, having celebrated his 20th birthday on 25/12/92 and it was New Year's Eve. He said he was drunk and he did not remember the latter part of the evening although he knew he was having a good time. Neither counsel were able to assist on the hearing of the appeal as to the precise information which was alleged to have constituted the disorderly conduct. The respondent suggested, however, that as the appellant had not been arrested until after the fighting had occurred that the fighting was probably included in it. It is not possible to resolve this matter by reference to the Magistrate's remarks as to penalty as they are extremely brief. The learned Special Magistrate said: "It seems highly likely that New Year's Eve is becoming an obstacle in your life rather than for celebration. Maybe it would be better if you stayed at home. A record such as this is now unimpressive. You are now at the point where you are a nuisance in the community." 11. He then convicted the appellant and imposed the suspended sentence of imprisonment to which I have referred. 12. It is not possible to identify from these remarks whether there were circumstances of aggravation, such as violent behaviour, which required the Magistrate to take the course he did and impose a sentence of imprisonment. The reference to "New Year's Eve" in those comments is also curious. That remark suggests a repetition by the appellant of similar behaviour but if that is so it is not possible to identify that behaviour from the Magistrate's remarks. In sentencing the appellant the Magistrate of course had regard to his criminal record. That included a conviction for fighting in a public place on 17/1/92 for which the appellant had received a fine of $300. It may be that to which the Magistrate referred. Counsel for the appellant pointed out, however, that the appellant's brother had been in a similar position on an earlier occasion. Brett Llewellyn Davies was previously convicted by the same Magistrate on a charge of behaving in a disorderly manner in a public place, in the early hours of New Year's Day 1992. It was suggested that the Magistrate could well have confused the two matters but the paucity of reasons makes it impossible to resolve this matter. The sentence imposed on that occasion was also the subject of an appeal. In Davies v Lloyd (unreported decision delivered on 3/4/92) Mullighan J said at p.3: "However, here, it is clear that the sentencing discretion has miscarried because of the severity of the sentence, itself. Even allowing for the fact of a previous conviction of the appellant when he was barely an adult, and for which a penalty of 60 hours community service was imposed, I am unable to see how the conduct, which was the subject of this offence, could have justified a sentence of imprisonment at all." 13. The appeal was allowed, the sentence and bond quashed and a sentence of 40 hours community service already served was imposed. 14. In the course of argument I was also referred to the unreported decision of Mullighan J in Fiegert v Fauser delivered on 21/10/92. In that case a suspended sentence of six weeks' imprisonment for disorderly behaviour was set aside and a fine imposed. I was also referred to the decision of Olsson J in Gordon v Smith (Unreported judgment delivered on 30/7/92). In that case a sentence of two months' imprisonment was reduced to four weeks' imprisonment suspended upon the appellant entering into a bond which included a condition to carry out 100 hours of community service. The respondent argued that the facts of the latter case were more akin to the circumstances of this than the other decisions to which I have referred. In view of the limited amount of information that is available in this case, however, it is very difficult to draw that analogy. In the absence of sufficient reasons to justify the sentence, I am of the view that, despite his record, the sentence of imprisonment, albeit suspended, imposed on a young man affected by alcohol on New Year's Eve was manifestly excessive. I am satisfied therefore that the sentencing discretion has miscarried. In any event there would appear to be a further error with respect to sentence. That relates to the requirement that the appellant carry out 80 hours of community service. The appellant was not represented 6 at the hearing and there does not appear to have been any information provided, or enquiry made, as to his personal circumstances. Section 47(h) of the Criminal Law Sentencing Act 1988 required the learned Special Magistrate to make some assessment of the capacity of the appellant to carry out community service. That section is in the following terms: "the person may not be required to perform community service at a time that would interfere with his or her remunerated employment or with a course of training or instruction relating to, or likely to assist him or her in obtaining, such employment, or that would cause unreasonable disruption of the person's commitments in caring for his or her children;" 15. Having identified errors in the exercise of the sentencing discretion it remains for me to exercise that discretion afresh. The appellant at the time of these events was aged just 20 years. His girl-friend Raquel was pregnant with their son Brenton who was born on the 22nd of April 1993. They separated shortly before Brenton was born but are planning to resume their domestic relationship in the near future. The appellant has moved away from Mount Gambier and is residing in Lucindale where he is working as a shearer. His mother manages the bakery in Lucindale and he has rented a home for his family. The contents of his affidavit suggest that the appellant may be at the crossroads. There appear to be some positive signs that the responsibility of parenthood may be assisting him in reaching some maturity. 16. The appellant has carried out the 80 hours of community service ordered. I consider that a fine was, and is, the appropriate penalty for this offence. Accordingly, I consider that it would be unjust to refuse the application for an extension of time and allow the sentence of imprisonment imposed by the learned Special Magistrate to stand. I therefore grant the appellant an extension of time within which to appeal. The appeal will be allowed to the extent that I quash the sentence and bond and in lieu thereof I impose a fine of $300 or in default six days' imprisonment is ordered.