Newcombe v Police - [2004] SASC 26

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…

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 Newcombe v Police

Details

AGLC: Newcombe v Police [2004] SASC 26
Case: [2004] SASC 26
Decision Date: 9 February 2004

CaseChat Overview and Summary

Kenneth Glen Newcombe appeals against his conviction and sentence imposed by a magistrate. Mr Newcombe was charged with property damage after he kicked the windows of a shop, causing them to break. He pleaded guilty and was convicted by a magistrate, who imposed a fine of $400, ordered him to pay compensation of $848, and imposed court costs. Mr Newcombe sought an extension of time to appeal the sentence, arguing that he had consumed a considerable amount of alcohol at the time of the offence, which led to the loss of temper and the property damage. The appeal was delayed due to the cultural significance of two funerals in the appellant’s family, and the inability to locate the appellant due to the absence of a telephone connection at his mother’s residence. The court found that the delay in lodgement was short and a satisfactory explanation was offered. No prejudice to the Crown had been identified. The appeal was allowed, and the order of the magistrate recording a conviction was set aside.

The appeal raises the issue of whether the magistrate erred in recording a conviction in the circumstances of this case. Counsel for Mr Newcombe submitted that the magistrate failed to have sufficient regard to Mr Newcombe’s personal circumstances and the possible prejudice to his future employment prospects. The court found that it was appropriate to exercise the discretion not to record a conviction in the circumstances of this case. The court found that the potential benefit to Mr Newcombe in proceeding without conviction outweighs the public interest in a conviction being recorded. This is isolated offending by a young man with a good record brought about by immaturity and alcohol. The court found that the magistrate erred in recording a conviction in the circumstances of this case. The order of the magistrate recording a conviction should be set aside. The appeal is allowed, and 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.

Orders