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…

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

Case: [2010] SASC 186
Decision Date: 25 June 2010

CaseChat Overview and Summary

The appellant, Rankine, appeals against a decision of the Kadina Magistrates Court to record a conviction after she pleaded guilty to a charge of assault. The case involves a dispute regarding the Magistrate’s exercise of discretion in not refraining from recording a conviction. The Magistrate imposed a bond to be of good behaviour for six months in the amount of $100.

The central legal issue in this appeal is whether the Magistrate erred in not exercising her discretion to refrain from recording a conviction. The appellant’s counsel argued that the Magistrate gave insufficient weight to various factors, including the appellant’s contrition, her Aboriginal descent, and the potential impact of a conviction on her employment prospects. The appellant contended that these factors warranted the exercise of discretion to avoid recording a conviction.

The Court found that the Magistrate was correct in her decision not to refrain from recording a conviction. It was noted that refraining from recording a conviction is an unusual step and an exception to the usual rule. The Court considered the circumstances of the offence, which involved an unprovoked assault on a hotel employee that caused injury. Given the nature of the offence and the risk of injury, the Court concluded that the Magistrate’s decision was appropriate and there was no error warranting interference.

The Court upheld the decision of the Magistrate not to refrain from recording a conviction and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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