Newcombe v Police

NEWCOMBE v POLICE
[2004] SASC 26
Magistrates Appeal
GRAY J
Introduction

This is an appeal against sentence.
The appellant Kenneth Glen Newcombe was charged with property damage. He pleaded guilty and was convicted by a magistrate. A fine of $400 was imposed. He was ordered to pay compensation of $848 and court costs.
On the night of the offence Mr Newcombe had consumed a considerable amount of alcohol. He was walking home in the early hours of the morning with a younger cousin. They argued. Mr Newcombe lost his temper and kicked the windows of a shop causing them to break. A witness heard smashing glass and saw the defendant walk past. He called the police.
When spoken to by police Mr Newcombe was cooperative and made full and frank admissions. He told police that he had consumed a large quantity of alcohol. Mr Newcombe entered a plea of guilty at an early stage. He indicated to the court that he was willing to pay compensation despite his limited financial means.
Proceedings before the Magistrate - Personal Antecedent
Mr Newcombe is a 19 year old Aboriginal man. He was born in Port Lincoln and raised by his mother there and at Ceduna. Mr Newcombe does not know and has never met his father. He lives with his mother at Sleford Bay. He is relevantly a first offender. Mr Newcombe was doing well in the local community and had strong support from his family and the wider community.
Mr Newcombe attended school in Port Lincoln until aged about 15 or 16 years. He then participated in the Community Development Employment Program (CDEP program) for two days a week. Mr Newcombe also attended a Technical and Further Education (TAFE) course in landscaping three days a week.
Counsel for Mr Newcombe requested the magistrate to exercise his discretion pursuant to the provisions of section 16 of the Criminal Law (Sentencing) Act 1988 (SA) not to record a conviction. It was submitted that the offence was a result of too much alcohol, loss of temper and immaturity.
The learned magistrate provided the following brief remarks:
You will be convicted of the offence. You need to understand that you just cannot go around damaging other people’s property.
I will deal with you by way of a fine even though you are on a limited income. There will be a fine of $400, $88 court fees, $35 Criminal Injuries Levy and $16 prosecution costs.
I order you to pay compensation to the Registrar of this court in the amount of $848 for transmission to the victim.
Issues on Appeal
Extension of Time
The appellant sought an extension of time in which to appeal. An affidavit explained the circumstances that led to the delay in lodgement of the appeal. Following the hearing before the magistrate, attempts were made to locate Mr Newcombe to discuss with him the possibility of an appeal. There was no telephone connection at his mother’s residence. Two funerals for family members of Mr Newcombe took place in Port Lincoln throughout late July and the officers from ALRM were unable to locate Mr Newcombe. It was also culturally inappropriate to discuss matters such as a court case at that time. As soon as it became possible ALRM received instructions to appeal. The appeal documents were filed soon thereafter.
No prejudice was caused to the Crown by the delay.[1] Counsel for the Crown had no objection to an extension of time being granted.
[1] Gikas v Police (1999) 202 LSJS 301
The court has a discretion to extend the time within which a party can appeal. In this case the delay in lodgement was short and a satisfactory explanation has been offered. No prejudice to the Crown has been identified. In any event further relevant material has been placed before the court which requires a reconsideration of the issues raised in this appeal. It is appropriate to extend time to appeal.
Counsel’s Submissions
Counsel for Mr Newcombe submitted that a conviction should not have been recorded. It was said that there was sufficient information before the magistrate to enliven the discretion not to impose a conviction. The circumstances warranted the magistrate utilising that discretion and to proceed without recording a conviction. Emphasis was placed on Mr Newcombe’s youth and his excellent prospects for rehabilitation.
Counsel submitted that Mr Newcombe would probably seek employment in farming and horticulture in the Port Lincoln or Ceduna areas upon completion of his studies. It was said that a conviction was likely to be detrimental to Mr Newcombe’s chances of obtaining employment in the future.
Counsel for the Crown accepted that Mr Newcombe’s youth, his good record and his undertaking of education and work programs provide a sufficient basis for the court not to impose a conviction.
Further Evidence on Appeal
Authorities have made clear that while ethnicity is not itself a factor of relevance to a judge in sentencing, the circumstances, history and culture of an offender may be relevant to the sentencing process. In Neal v The Queen[2] Brennan J observed:
The same principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account in accordance with those principles, all material facts, including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the administration of justice.
[2] (1982) 149 CLR 305 at 326. See also R v Smith [2003] SASC 263
In R v Fernando[3] Wood J commented:
The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.
…The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
…That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
[3] (1992) 76 A Crim R 58 at 62
By consent, further material was placed before this court concerning indigenous offenders and the situation of indigenous Australians in general. Two reports from the Australian Bureau of Statistics were tendered as well as a research paper from the Centre for Aboriginal Economic Policy Research.[4] The research paper reached conclusions concerning indigenous employment levels:
…the key feature of Indigenous employment status is that it remains firmly below the national average at less than three-quarters of the level recorded for non-Indigenous adults.
[4] Hunter, Kinfu and Taylor, ‘The future of Indigenous work: Forecasts of labour force status to 2011, CAEPR, ANU No 251/2003.
It was submitted that the circumstances that relate to Mr Newcombe by reason of his ethnicity, including diminished employment prospects, are matters relevant to sentencing[5].
[5] Section 10(1)(o) of the Sentencing Act. A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
Counsel submitted to the court that the rate of unemployment among indigenous Australians was substantially higher than the unemployment rate for non-indigenous Australians.[6] It was pointed out that Mr Newcombe lived in a rural area where opportunities for employment are commonly acknowledged to be less than that of an urban area. The recording of a conviction was likely to diminish Mr Newcombe’s employment prospects. It was said that the court should consider particular difficulties that could arise were a conviction to be imposed.
[6] Hunter, Kinfu and Taylor, ‘The future of Indigenous work: Forecasts of labour force status to 2011, CAEPR, ANU No 251/2003. This report further makes the conclusion that the medium term prognosis is ‘for a substantial worsening of the overall labour force status of indigenous people.’
In this case the effect that a conviction may have on Mr Newcombe’s future employment prospects is a relevant sentencing consideration. In considering the penalty to be imposed on Mr Newcombe, the court should take into account the factors relevant to him through his particular ethnicity.[7]
Recording of a Conviction
[7] This reasoning has been applied previously in cases where a custodial sentence is to be imposed on a person of Aboriginal background whereby aboriginality is considered a relevant factor in sentencing.- see R v Fernando (1992) 76 A Crim R 58
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA) provides the court with a discretion to proceed without recording a 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.
Once a court is satisfied that section 16 (a) and (b) have been satisfied, the court must still consider whether it is appropriate to exercise the discretion. As was observed in Zefi v Police[8]
The considerations in section 16 are conditions precedent to the exercise of a discretion to proceed without conviction. Once these conditions are satisfied the question becomes whether the enlivened discretion ought to be exercised.
…
In deciding whether to impose a conviction, this court should weigh the potential benefit to Ms Zefi in proceeding without convictions with the public interest inherent in convictions being recorded.
[8] [2003] SASC 218 at [10] and [16] . See also Sims v Police [2000] SASC 102 at [7]
A further consideration is the public interest in a conviction being recorded. In R v Briese[9] the Queensland Court of Criminal Appeal observed:
…the effect of [a conviction] is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department…For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and courts need to be aware of this potential effect...
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation…
...
The express mention…of the nature of the offence as a factor to which the court must have regard in the exercise of the discretion whether or not to record a conviction suggests that there are certain types of offences which will call for the recoding of a conviction…A court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so called ‘victimless’ crime.
[9] (1996-1997) 92 A Crim R 75 at 79-81
In deciding whether to impose a conviction, this court should weigh the potential benefit to Mr Newcombe in proceeding without conviction, with the public interest inherent in a conviction being recorded.
Mr Newcombe’s prior good record is an important consideration. A conviction could damage Mr Newcombe’s chances of obtaining employment upon the completion of his TAFE course. This consideration is particularly relevant considering the unemployment statistics and other information outlined earlier in these reasons.
This is isolated offending by a young man with a good record brought about by immaturity and alcohol. The public interest in the recording of a conviction is outweighed by the possible detriment that a conviction might have on Mr Newcombe.
Re-sentence
The magistrate erred in recording a conviction in the circumstances of this case. He failed to have sufficient regard to Mr Newcombe personal circumstances and the possible prejudice to his future employment prospects.
The order of the magistrate recording a conviction should be set aside. However, it was appropriate for the magistrate to have imposed a fine and ordered the payment of compensation.
Counsel for Mr Newcombe submitted that Mr Newcombe had adequate support from his local community through networks including the CDEP scheme and also through his TAFE course. It was contended that a bond was unnecessary in these circumstances. The court received an affidavit from Mr Newcombe detailing this support. It is evident that he is unlikely to offend again. He is aware of the circumstances that led to the offence. The court is assured that family and community support is available. In these circumstances it is inappropriate to require Mr Newcombe to enter into a bond.
This appeal is allowed. The orders of the magistrate are set aside. Mr Newcombe is to be released without conviction. He is to pay a fine of $400, compensation in the amount of $848 and court costs of $139.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 Gikas v Police (1999) 202 LSJS 301
2 (1982) 149 CLR 305 at 326. See also R v Smith [2003] SASC 263
3 (1992) 76 A Crim R 58 at 62
5Hunter, Kinfu and Taylor, ‘The future of Indigenous work: Forecasts of labour force status to 2011, CAEPR, ANU No 251/2003.

6Section 10(1)(o) of the Sentencing Act. A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(o) any other relevant matter.

7Hunter, Kinfu and Taylor, ‘The future of Indigenous work: Forecasts of labour force status to 2011, CAEPR, ANU No 251/2003. This report further makes the conclusion that the medium term prognosis is ‘for a substantial worsening of the overall labour force status of indigenous people.’

8This reasoning has been applied previously in cases where a custodial sentence is to be imposed on a person of Aboriginal background whereby aboriginality is considered a relevant factor in sentencing.- see R v Fernando (1992) 76 A Crim R 58

9[2003] SASC 218 at [10] and [16] . See also Sims v Police [2000] SASC 102 at [7]

10 (1996-1997) 92 A Crim R 75 at 79-81

…
(o) any other relevant matter.

[2004] SASC 26

9 February 2004