NAT WEBER and NICHOLAS LOUIS MEHRTENS v. SA POLICE No. SCGRG 93/1235 Judgment No. 4104 Number of Pages - 4 Criminal Law and Procedure

[1993] SASC 4104

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - Appeals against recording of convictions - damaging property charges - appellants young persons of good character with no prior convictions - magistrate failed to take into account part appellants played in incident and impact convictions would have on employment prospects - recording of convictions not appropriate in circumstances. Criminal Law (Sentencing) Acts16; Criminal Law Consolidation Acts85 and Summary Offences Acts17. Uznanski v Searle (1981) 26 SASR 388; R v Wilton (1981) 28 SASR 362 and Jones v Morley (1981) 29 SASR 57, applied.

HRNG ADELAIDE, 9 August 1993 #DATE 18:8:1993
Counsel for appellants:     Mr D Meyer
Solicitors for appellants:    Michell Sillar Lynch
  and Meyer
Counsel for respondent:     Ms G Ebbeck
Solicitors for respondent:    Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 OLSSON J These are appeals by two persons who were jointly charged with the offences of damaging property, contrary to section 85 of the Criminal LawConsolidation Act, and being on premises for an unlawful purpose, contrary to section 17 of the Summary Offences Act. 2. Each pleaded guilty to the charges against them, but they contend that, in light of the facts placed before the learned magistrate, he ought not, in exercise of his discretion under section 16 of the Criminal Law (Sentencing)Act, to have recorded any conviction against either of them. In the event the learned magistrate elected to record a conviction as to each appellant in respect of the first count, but dismissed the second. He ordered payment by each appellant of a fine of $300 plus court fees and levy, together with damage compensation of $54.60. 3. The present appeals are limited to the question of the section 16 discretion. 4. The relevant facts were never in dispute. The learned magistrate was told that, at about 11.30pm on 27 March 1993 the proprietor of Heyne's Nursery left the nursery at 287 The Parade, Beulah Park. All gates and fences were secured and all pot plants and pots were in an orderly condition at that time. Plants, pots and soil mixture were left outside in the yard, which is secured by a 8 foot barbed wire fence. 5. At about 9.30am on 28 March the proprietor attended the nursery and discovered that about 10 pot plants were lying on their side. Two pots valued at $23.95 each had been smashed and 2 bags of soil mixture valued at $7.00 each had been ripped open and spread on the ground. One shrub valued at $31.00 was also broken. 6. The learned magistrate was informed that the labour cost to clean up the damage was $16.30 and that the victim was seeking compensation of $109.20. 7. He was further told that a witness related to police that, at about 5.05am on 28 March, he was at premises opposite the nursery when he was awakened by the sound of something smashing. On looking outside he saw several males inside the yard of the nursery. He said that, as they were walking about, he could hear the sound of things smashing. He then called the police and went outside. He saw the males climb over the fence and walk east along The Parade. A Holden Commodore then pulled up alongside the males and they had a conversation. 8. The prosecutor stated that police attended at about 5.15am and observed two males standing on the footpath by a Commodore sedan. The sedan sped away and police had a conversation with the two males. The witness had identified the defendants as being males he had seen climb over the nursery fence. When spoken to the appellant Mehrtens said that he entered the nursery with two others, as they wanted something to do on the way home. He said that they climbed over a fence and pulled over several pot plants. They realised it was a silly thing to do and then left. He said that he did not know who had smashed the pot on the road. 9. The appellant Weber had told the police that they saw the place, so they climbed over the fence. He said he was with three others. He said they pulled over a couple of things and, on realising it was a silly thing to do, they left. He said he pulled over a couple of plants because it was the mately thing to do, but he did not feel he damaged the pots in any way. He asserted that he did not know who smashed the pot on the road. 10. The prosecutor conceded to the learned magistrate that both appellants had no prior convictions. 11. Against that background, and having considered submissions made by counsel on behalf of the appellants, the learned magistrate recorded the conviction earlier referred to and, as I have said, dismissed the second count as to each of them. 12. In doing so he expressly recognised:- (1) the early plea; (2) a spontaneous apology by the appellant Weber to the nursery proprietor; (3) the lack of prior antecedent records; (4) that the behaviour of each appellant was uncharacteristic; (5) the youth of each appellant; (6) that each appellant was remorseful; and (7) the willingness of the appellants to pay compensation. 13. However, he pointed out that this was a case of pointless destruction, carried out by young persons who were apparently "looking for something to do on the way home". He felt bound to impose a conviction on the first count. 14. The appellants complain that the learned magistrate failed adequately to take into account the character, age and antecedents of each of them, as well as other extenuating circumstances and the likely effect of a conviction upon their future employment prospects. 15. On the hearing of the appeal counsel for the appellants submitted to me, as he had submitted to the learned magistrate, that they were two young men aged 18 and 19 years at the time of the incident, who come from good family backgrounds and were of unblemished character. They had been drinking at an hotel with some friends, but were uninhibited rather than truly intoxicated as a consequence. What took place was a classic example of the so-called Abilene Paradox - the phenomenon whereby people in groups readily agree on courses of action which, as individuals who are otherwise sensible and of good character, they know are patently stupid and inappropriate. 16. He was informed that the group had been former secondary students at the same school, who had been to the Head of the River rowing regatta and then spent the evening together at a hotel. They were walking home as a group and what occurred was simply a stupid prank, in which, I infer, the other person or persons present, who absconded and have not been prosecuted may well have done much of the damage. It was said that the other persons first went into the nursery and the two appellants followed. They ran through the nursery chasing one another. 17. It was stressed to the learned magistrate that, unlike the ringleaders, the two appellants had not absconded, readily co-operated with the police and were prepared to make full restitution. 18. What does not appear to have been commented upon by the learned magistrate in his sentencing remarks is the relative part played by the appellants in the incident - they not having been the ringleaders or having intended to cause damage - and the potentially grave impact that the recording of a conviction would have upon these young men, especially in the case of the appellant Weber. He is attending a course at Regency Park College and seeks to complete a hotel management course. He has applied for employment at the Casino and the recording of a conviction could well have the effect of denying him such employment and ruining a potential career. It would also have serious adverse effects upon the employment prospects of the appellant Mehrtens, although, perhaps, not as acutely. Mehrtens currently has limited casual employment, but seeks to gain a full time position. 19. It is trite to say that this court will be slow to interfere with the exercise of a sentencing discretion and will only do so on the bases adverted to in authorities such as Uznanski v Searle (1981) 26 SASR 388 at 389, R v Wilton (1981) 28 SASR 362 at 363 and Jones v Morley (1981) 29 SASR 57 at 63. In this case the learned magistrate, whilst recognising the specific factors listed above, took a somewhat jaundiced view of the episode, occurring, as it did, at a time when acts of vandalism are a major problem in the community. But after carefully considering all of the aspects of this matter I am left with the conclusion that he did not give adequate weight to the combination of circumstances that these appellants were not the prime movers in what transpired, they may well not have caused much of the damage, they did not abscond and readily co-operated with the police and the recording of convictions are likely to have disastrous effects on their employment prospects. I agree with him that these are matters which must be taken seriously, but it is important to note that these were young lads of prior impeccable character, who acted quite out of character; and that this was by no means typical of the general run of cases of wanton vandalism that come before the courts. It was also a matter of serious consideration that the appellant Weber faced up to Mr Heyne and apologised for his conduct. 20. It seems to me that, in all of the circumstances, including the agreement of the appellants to pay full compensation, notwithstanding that they did not cause all of the damage, the justice of the case was properly met by resort to the provisions of section 16 of the Criminal Law (Sentencing) Act. I have concluded that his failure to mention all of the factors to which I have referred - specifically the part played by these two appellants and the probable impact upon employment, indicate the propriety of my exercising the sentencing discretion afresh. 21. I have no quarrel with the quantum of the fine imposed - it serves to make, in salutary fashion, that this type of conduct cannot and will not be tolerated. 22. The appeal will, however, be allowed for the purpose of setting aside each conviction recorded. In all other respects the orders of the learned magistrate are confirmed.