Jelicic v Police - [2009] SASC 240

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
JELICIC v POLICE
[2009] SASC 240
Judgment of The Honourable Justice Kelly (ex tempore)
10 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
Appellant pleaded guilty in the Adelaide Magistrates Court to behaving in disorderly manner in a public place – Magistrate fined the appellant $50 and recorded a conviction – appeal against the decision to record a conviction – appellant aged 22 years – no relevant prior convictions – appellant's conduct was at the lower end of the scale for this offence – effect on the appellant if conviction recorded.
Held: appeal allowed – discretion in s 16 of the Criminal Law (Sentencing) Act 1988 available and appropriate to exercise in this case – Magistrates sentence set aside – appellant re-sentenced with no conviction recorded – appellant's fine increased from $50 to $200.
Summary Offences Act 1953 (SA) s 7(a); Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Sims v Police (2000) 30 MVR 524, applied.

JELICIC v POLICE
[2009] SASC 240
Magistrates Appeal.

KELLY J (ex tempore): This is an appeal against a sentence which was imposed by a Special Justice in the Adelaide Magistrates Court on 3 June 2009.
The appellant, Mr Jelicic, was convicted after entering a plea of guilty to an offence under s 7(a) of the Summary Offences Act 1953 for behaving in a disorderly manner in a public place. The maximum penalty prescribed for that offence is a fine of $1250 or three months imprisonment. After hearing submissions the Special Justice fined the appellant the sum of $50 and recorded a conviction.
The background to the charge is set out in the police apprehension report and in affidavits which have been tendered on this appeal. As none of the facts in those affidavits are disputed I take the facts to be that at about 5.45 am on Sunday 8 March 2009 the appellant became involved in a fairly large disturbance which occurred outside a place known as the Dog and Duck on Hindley Street Adelaide. The appellant was one of a large number of young males apparently involved in this disturbance. He was arrested and taken to the City Watch-House and I am told that he spent some six hours in custody in that watch-house as a result of his arrest, initially on a more serious charge of aggravated assault.
Later, after viewing the council CCTV footage of the incident, the police downgraded that charge and he ultimately was charged with disorderly conduct in a public place. He pleaded to that at the earliest opportunity.
His counsel, Ms Waite, made an application that a conviction not be recorded in relation to that offence. Ms Waite made quite extensive submissions to the Special Justice about the discretion available to him under s 16 of the Criminal Law (Sentencing) Act 1988 which provides:
16 —Imposition of penalty without conviction
Where a court…

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: Jelicic v Police [2009] SASC 240
Case: [2009] SASC 240
Decision Date: 10 August 2009

CaseChat Overview and Summary

In the case of Jelicic v Police, the appellant contested the decision of the Adelaide Magistrates Court to record a conviction after pleading guilty to disorderly behaviour in a public place. The Magistrate fined the appellant $50 but proceeded to record a conviction despite the plea. The appellant, aged 22 and with no prior convictions, argued that the recording of the conviction would have a detrimental effect on their future prospects, considering the relatively minor nature of the offence. The court was required to determine whether the Magistrate's decision to record a conviction was appropriate under the circumstances and whether the appeal against this decision should be upheld.

The legal issue at the heart of this appeal was whether the Magistrate correctly exercised the discretion provided by section 16 of the Criminal Law (Sentencing) Act 1988. This section empowers the court to forgo recording a conviction when sentencing a person who has pleaded guilty. The court had to assess whether the Magistrate considered the relevant factors, including the appellant's age, lack of prior convictions, and the relatively minor nature of the offence, in exercising this discretion. The court needed to determine if the decision to record a conviction was an error, warranting the setting aside of the sentence and the re-sentencing of the appellant without recording a conviction.

The Court of Appeal found that the Magistrate's decision to record a conviction was an error. The court emphasised that the discretion under section 16 of the Act was available and should have been exercised in this case, given the appellant's age, absence of prior convictions, and the relatively minor nature of the offence. The Court of Appeal set aside the Magistrate's sentence and re-sentenced the appellant, increasing the fine from $50 to $200, but without recording a conviction. This outcome was deemed appropriate to balance the need for punishment with the lesser impact of a conviction on the appellant's future.

Orders