Newcombe v Police

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.