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 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 Special Justice refused the application and determined to impose a conviction. It appears from the affidavits filed by both the respondent and the appellant that his reason for doing so expressed at the time was his concern about the frequency of this kind of conduct in Hindley Street, and the need for a conviction to send a message of deterrence to the public and undoubtedly to other like-minded youths.
The appellant is now 22 years old. He has no relevant prior offences. It is not in dispute that he cooperated with the police; in fact, he remained at the scene and was arrested by police a few minutes later. As I have mentioned, he entered a guilty plea at the first opportunity. He has a job and did at the time of the offence; I am told it is full-time employment, as an orderly at the Calvary Hospital. He lives at home with his parents and has the support of a family network.
The basis upon which he entered his plea was that he went to the Dog and Duck with a group of his friends. When an altercation started outside of the venue involving one of his friends other people became involved and the dispute escalated rapidly. The appellant went outside to try and break up the fight, as he saw one of his friends lying on the ground. He told police he was trying to protect his friend and subdue the fight.
To some degree the police must have accepted what the appellant said about the incident as they did downgrade the offence with which he was charged. On the basis of the fact that he was only peripherally involved in the fight, and appears to have aimed either a kick or a punch in the general area of the people fighting, they ultimately settled on the offence of disorderly conduct.
In my view, even taking into account the respondent’s quite persuasive submissions, I cannot accept that the circumstances surrounding the appellant’s involvement in that offence do place his offending in the more serious category. In my view it might properly be viewed at the lower end of that offence. While it might be said that he was a very foolish young man to become involved at all once the altercation started, nevertheless, it is understandable how a relatively young person might instinctively go to the aid of a friend in a situation like this, where violence has erupted. Undoubtedly alcohol would have contributed to the events which occurred that morning.
I accept, as Ms Hanson submitted, that the discretion available to judicial officers under s 16 of the Criminal Law (Sentencing) Act 1988 should be exercised sparingly. It is correct that there is an assumption, as Bleby J pointed out in Sims v Police (2000) 30 MVR 524, that in most cases a conviction will be recorded. That is so because there is an important public interest in the recording of convictions and there is a need for an official record to be made of such offences, which has an important practical consequence that those people, i.e., subsequent employers and the like that have an interest in knowing the criminal history of the person can do so.
It must also be acknowledged that there is a considerable punitive and deterrent aspect in recording a conviction, and this aspect of punishment is of particular importance in breaches of what might properly be described as behavioural and social legislation.
In this case it has been submitted by counsel for the appellant that the recording of a conviction against this young man may well have an adverse effect on his employment prospects in the future, should he wish to travel overseas for whatever purpose and should he wish to change his employment, depending on the nature of the industry he ultimately decides to work in.
I accept that it is not appropriate to suggest or require that magistrates, particularly special justices dealing with undoubtedly heavy lists, should have to advert to all matters exercising their minds when sentencing offenders. Nevertheless, in this case very thorough submissions were put to the Special Justice. It was, if I may say so, a finely balanced matter and it was incumbent, it seems to me, on the Special Justice to consider very carefully whether or not good reason existed in the circumstances of this case to exercise the discretion which was undoubtedly available to him.
When a young person becomes involved in criminal activity for the first time it is important for the court to recognise that a sentence which emphasises and encourages rehabilitation can, in a very real sense, promote public interest better in the long run than a sentence which might emphasise the punitive and deterrent aspects of sentence.
It is true that this appellant was not a teenager, he was 22 years old, but he was still entitled to be treated as a youthful offender.
In my view, having regard to all of the matters which were put by Ms Waite concerning the personal circumstances of the appellant, there is good reason to suppose that this appellant may well benefit from the exercise of the court’s discretion. In my view there are powerful reasons in this case to err on the side of mercy. I consider that in the circumstances of this case the Special Justice erred by failing to give adequate weight to those circumstances and overemphasising the need for deterrence.
For those reasons I am prepared to conclude that error having been made this Court is entitled to re-sentence the appellant and, in doing so, reconsider afresh whether the discretion in s16 ought to be exercised.
For the reasons I have already given I consider this is an appropriate case to find that good reason does exist for this Court to refrain from imposing a conviction. I consider that the recording of a conviction against the appellant may well jeopardise his prospects for future employment, particularly as he has chosen to work in a field which will involve employment within perhaps not the government but government agencies, hospitals and the like.
There has been no suggestion that the appellant is likely to offend again. I consider it was probably a very salutary experience that he found himself, after a night out, incarcerated in the City Watch-House for over six hours. I am of the opinion that the appellant is unlikely to commit another offence and, further, that having regard to his age and character that there is good reason for not recording a conviction.
Therefore, in the exercise of my discretion, I will re-sentence the appellant. In my view $50 wasn’t a very substantial fine. I have considered whether or not a bond should be imposed but I think, in the circumstances, a fine of $200 may well have a more salutary effect, so I impose a fine of $200 and direct that a conviction not be recorded.
ADJOURNED 10.20 A.M.