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…

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: 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
Case: [1993] SASC 4104
Decision Date: 18 August 1993

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of NAT WEBER and NICHOLAS LOUIS MEHRTENS v. SA POLICE involved an appeal against the recording of convictions for damaging property and being on premises for an unlawful purpose. Both appellants, Weber and Mehrtens, pleaded guilty to the charges but argued that the magistrate should not have recorded any conviction against them. They contended that the magistrate had not adequately considered their good character, age, antecedents, and the potential impact of the convictions on their employment prospects.

The court was required to decide whether the magistrate had appropriately exercised his discretion under section 16 of the Criminal Law (Sentencing) Act. The appellants argued that they were not the ringleaders, did not cause much of the damage, cooperated with the police, and had no prior convictions. The court considered the arguments and examined whether the magistrate had overlooked key factors in exercising his discretion.

The court found that the magistrate had recognised several mitigating factors but had not adequately considered the specific roles of the appellants in the incident and the potential impact of the convictions on their future employment. Olsson J held that the magistrate's failure to consider these factors warranted a fresh exercise of the sentencing discretion. Consequently, the appeal was allowed, and the convictions recorded were set aside. The court upheld the other aspects of the magistrate's orders, including the fine and compensation.

The final orders of the court were that the convictions recorded by the magistrate were set aside, while all other aspects of the magistrate's orders were confirmed. This decision highlighted the importance of considering all relevant factors in exercising sentencing discretion, particularly for young offenders with no prior convictions.

Orders