LAUNDY v Police - [2005] SASC 325

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAUNDY v POLICE
Judgment of The Honourable Justice White
26 August 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to the offence of assault of a security officer - convicted and fined $750 - whether Magistrate erred in refusing to exercise discretion to impose fine without recording a conviction - whether Magistrate erred in weight given to seriousness of the offending - whether Magistrate failed to have sufficient regard to appellant's personal circumstances - held no error by Magistrate demonstrated - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), s 39; Criminal Law (Sentencing) Act 1988 (SA), s 16, referred to.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2002) 202 CLR 321; Wessling v Police [2004] SASC 51, (2004) 88 SASR 57; Yardley v Betts (1979) 22 SASR 108, applied.

LAUNDY v POLICE
[2005] SASC 325
Magistrates Appeal

WHITE J: On 7 June 2005, the appellant and a co-offender each pleaded guilty to the offence of assault.[1] In each case, a conviction was entered, and a fine of $750 imposed. The appellant (but not the co-offender) appeals against sentence. He complains in particular of the Magistrate’s refusal to exercise the discretion invested in him by s 16 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) to impose the fine without recording a conviction.
[1] Criminal Law Consolidation Act, s 39.
Circumstances of the Offending
In the early hours of 26 January 2005, the appellant was present with others at the Lonsdale Hotel. He had been drinking there for some time and was intoxicated.
The victim of the assault was a security officer employed by the Hotel. He became concerned at the increasing rowdiness of the group of which the appellant formed part. Accordingly he instructed bar staff to refuse the service of further alcohol to them. This led to one member of the group becoming aggressive towards the security officer and engaging in menacing conduct towards him. The victim, being fearful of being assaulted, struck that person with a large torch. This then led to an assault on the victim by the appellant, his co-offender and others. The victim was punched many times on the head and upper body. At one stage during the fight, he fell to the floor landing on a glass which broke causing a deep laceration to his upper right leg. However, it was not alleged that the blows struck by the appellant or the co‑offender had caused any injury, nor that they were to be held responsible for the lacerations suffered by the victim.
The appellant then left the Hotel. Within a day or so he…

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.

Continue reading LAUNDY v Police

Details

AGLC: LAUNDY v Police [2005] SASC 325
Case: [2005] SASC 325
Decision Date: 26 August 2005

CaseChat Overview and Summary

The appellant, in the case of LAUNDY v Police, appealed against the sentence imposed by the Magistrate for the offence of assaulting a security officer. The appellant pleaded guilty and was convicted, resulting in a fine of $750. The legal issues before the court were whether the Magistrate erred in refusing to exercise the discretion to impose a fine without recording a conviction, whether the Magistrate erred in the weight given to the seriousness of the offending, and whether the Magistrate failed to have sufficient regard to the appellant’s personal circumstances.

The court examined the Magistrate's decision and found that the Magistrate was well within their discretion to impose a fine and record a conviction. The Magistrate acknowledged the appellant's personal circumstances and the arguments presented by the appellant's counsel, including the voluntary admission of guilt, unemployment status, and the potential negative impact of a conviction on future employment prospects. However, the Magistrate was particularly influenced by the serious nature of the conduct, which involved a joint attack on a security officer in a public place. The court found that the Magistrate did not err in their decision and upheld the sentence.

The court's reasoning was based on the provisions of Section 16 of the Sentencing Act, which allows a court to impose a penalty without recording a conviction if the defendant is unlikely to commit such an offence again and good reason exists for not recording a conviction. The Magistrate was not satisfied that good reason existed for not imposing a conviction due to the serious nature of the conduct. The appeal was dismissed, and the conviction and sentence stood as imposed by the Magistrate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was submitted to the Magistrate that both the appellant and his co-offender should be dealt with pursuant to s 16 of the Sentencing Act. That is to say, that the Court should impose a penalty of a fine but without recording a conviction. The appellant’s counsel emphasised to the Magistrate the fact that he had voluntarily gone to the police station and made full admissions, that he was unemployed at the time of the offending and that the recording of a conviction may have a detrimental effect on his prospects of obtaining further employment. The appellant was aged 29 at the time of the offending. No prior offending was alleged by the prosecutor.The Magistrate’s Decision Having referred to the circumstances of the offending the Magistrate said:Mr Colthorpe, who appears for both defendants, describes their involvement as somewhat similar. They simply lost control when they saw their friend struck by the security officer. They both admitted throwing punches at him but neither were sure whether those punches contacted, but what they did was to involve themselves and others in a joint attack on this person who was doing no more than performing his employment duties. They took the view he was being over-aggressive. It was not for them to make that determination.Normally in these sorts of situations when people consume alcohol, become violent and assault members of the community, immediate imprisonment is warranted. There is too much violence in the community, particularly in pubs and other places where alcohol is consumed. Had it not been for Mr Colthorpe’s submissions I would have imprisoned them for two months at least. However, in view of their personal circumstances and Mr Colthorpe’s submissions they deserve lenience on this one occasion. Notwithstanding the submission that they should not be convicted, they are convicted and must each pay a fine of $750 together with [court fees and costs].Section 16 of the Sentencing Act Section 16 provides as follows: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.Section 16 presupposes that in the ordinary case a conviction will be recorded but allows the court, in the exercise of its discretion, to refrain from recording a conviction when there is “good reason” for doing so. The matters specified in paragraphs (a) and (b) are preconditions for the exercise of the discretion. The court must be satisfied that the defendant is unlikely to commit the offence again and that, having regard to at least one of the matters specified in paragraph (b), good reason exists for not recording a conviction. It is clear enough that the Magistrate was not satisfied that good reason for not imposing a conviction did exist. It is also clear enough that he was particularly influenced to that conclusion by the serious nature of the appellant’s conduct.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.