RANKINE v Police - [2010] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RANKINE v POLICE
[2010] SASC 186
Judgment of The Honourable Justice Kelly
25 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant pleaded guilty in the Kadina Magistrates Court to the charge of assault - Magistrate recorded a conviction and imposed a bond to be of good behaviour for six months in the amount of $100 - appeal against decision to record a conviction.
Held: appeal dismissed - no error demonstrated in exercise of Magistrate’s discretion – Magistrate took into account all relevant factors – no proper basis to interfere with Magistrate’s decision.
Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to.
Sims v Police [2000] SASC 102, applied.

RANKINE v POLICE
[2010] SASC 186
Magistrates Appeal: Criminal
KELLY J
Introduction

The appellant appeals against a sentence imposed in the Kadina Magistrates Court on 19 April 2010 for an offence of basic assault.
On that day the appellant entered a plea of guilty to the charge of assault causing harm pursuant to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The learned Magistrate recorded a conviction and imposed a bond to be of good behaviour for six months in the amount of $100. The maximum penalty prescribed for an offence of assault causing harm is three years imprisonment.
The appellant appeals on the ground that the Magistrate erred in not exercising her discretion to refrain from recording a conviction. It was submitted that there was, in all of the circumstances, good reason not to impose a conviction and the failure to do so was in error.
Background
The offence occurred in the early hours of Sunday morning 24 January 2010 outside the Cornucopia Hotel at Wallaroo. The victim, who at the time was the manager of the hotel, was closing up for the night when she heard glass smashing on the footpath area outside the hotel. The appellant was with a group of people walking towards the northern entrance of the beer garden. When the manager told them that the hotel was closed the group did not accept that. The appellant repeatedly attempted to open the gate while the manager was pulling it shut. During that altercation the appellant then reached through the gate and pulled the victim’s hair and dragged and twisted her arm over the gate. The victim’s head hit the fence and she felt pain to the back of her head as a result of her hair being pulled. The police were called and the appellant was later charged. An allegation of spitting was withdrawn by the prosecution. The appellant had been drinking prior to the incident.
At the time of the offence the appellant was aged 29. She was not in paid employment but was the sole carer of three young children aged four, three and eight months. She had previously had some work as a chef and had also been employed in the past by Families SA. Apart from a prior traffic conviction the appellant had no other criminal convictions. They were the facts upon which the Magistrate sentenced the appellant.
Counsel for the appellant asked the Magistrate to exercise the discretion available to her not to record a conviction. The Magistrate stated that she was not disregarding the personal circumstances of the appellant, however she concluded that it was not a case which warranted the more unusual course of not recording a conviction. In reaching that conclusion the Magistrate appears to have been influenced by the fact that the victim was going about her normal duties late at night, and that the actions of the appellant gave rise of some risk of injury, and in fact did cause injury to the victim.
Submissions on Appeal
It was submitted on appeal that the Magistrate gave insufficient weight to a number of factors, including the appellant’s contrition, the fact that the appellant, although not a traditional Aboriginal person, was nevertheless of Aboriginal descent and the fact that a conviction would impact on the appellant’s future prospects of employment, in particular with a government agency such as Families SA. It was submitted that, had proper weight been given to these matters, it would have and should have resulted in the favourable exercise of the discretion not to record a conviction.
Findings
In my view there has been no error demonstrated on the part of the Magistrate which would warrant this Court’s interference. The Magistrate was correct in noting that it is an unusual step not to record a conviction in a case such as this where a person is charged with a minor indictable offence. It is well established that the decision not to record a conviction is an exception to the usual rule. See Sims v Police [2000] SASC 102 per Bleby J. This was an unprovoked assault committed upon a hotel employee late at night. Although it was short in duration, it was a deliberate and blatant assault which did cause some injury to the victim. She suffered pain and bruising to her head and chest.
In support of the submission that the Magistrate failed to take into account the impact that a conviction would have on the appellant’s prospects of employment with an organisation like Families SA, counsel for the appellant submitted that, generally speaking, once a conviction is recorded it is impossible for a person to get employment with a government agency. The hearing of the appeal was adjourned for two weeks to enable some evidence of that fact to be put before me. Counsel for the respondent undertook to and did provide some communications from the manager of the Screening and Licensing Branch, Organisation and Community Development Department for Families and Communities as to that department’s policy in relation to employment where a person has been dealt with either by way of conviction being recorded or no conviction recorded. That material was placed before me by the consent of both counsel.
In my view the effect of that material does not support a submission that the appellant will not be able to obtain employment with Families SA should the conviction stand. Indeed the communications from the department itself tends to support a conclusion that the department would look closely at the circumstances of the offending, the penalty, and the nature of any relationship between the offender and the victim irrespective of whether ultimately a conviction is recorded, or not recorded, where a finding of guilt has been made.
In any event the submission that a conviction would impact on the appellant’s future prospects was clearly put to the Magistrate and the Magistrate indicated in her remarks that she had regard to all of the personal circumstances of the appellant.
In these circumstances I do not accept the submission that the Magistrate has overlooked any relevant matter.
For these reasons I do not consider that there is any proper basis to interfere with the Magistrate’s decision. Even if I were so minded, then taking into account all of the circumstances, I would have reached the same decision myself.
The appeal is dismissed.