Semmens v Police No. Scgrg-98-1077 Judgment No. S6868

SEMMENS v POLICE
[1998] SASC 6868

Magistrates Appeal

Perry J (Ex tempore)

The appellant pleaded guilty in the Magistrates' Court sitting at Adelaide to a charge that on 20 December 1997 at Adelaide he used offensive language in a public place, namely Rundle Street, contrary to s7(1)(c) of the Summary Offences Act 1953.
The learned sentencing magistrate imposed a fine of $100 which, together with court fees and other charges, came to $217 in all. He refused a request by the appellant, who appeared before him in person, not to record a conviction.
To his notice of appeal the appellant has attached an affidavit which sets out very lengthy particulars of grounds upon which the appeal is advanced. A short statement of those grounds is that the appellant complains:

1...... That the magistrate did not fully consider all the facts presented to him; more particularly, as to the amount of the fine, and as to the recording of a conviction.

That the fine was manifestly excessive.

That the recording of a conviction was manifestly excessive.

I have before me an affidavit sworn by the police officer who appeared in the court below, Mr Drinkwater. According to the affidavit, before the matter proceeded the learned sentencing magistrate explained to the appellant his rights, including his right to legal representation and the likely penalty for an offence of this type. The appellant said that he wished the matter to proceed and to plead guilty.
After the plea was entered Mr Drinkwater summarised the facts.
They were that at about 2 am on the night in question, which was a Saturday, the police observed the appellant standing in the vicinity of the Austral Hotel about 50 metres away from the position in which the police officers were, which was at the intersection of Rundle Street and Frome Road. The appellant's voice was said to be audible above the other noises in the vicinity. At the time the police officers were cautioning a pedestrian who had crossed against the traffic lights.
The appellant was heard to yell out in the direction of the police “Fucking leave him alone”. “Hey, fucking leave him alone.” “Ah - fucking crap.”
A large number of pedestrians and other members of the public in the area were in a position to hear what the police said they heard. The appellant was spoken to on the spot by the police. He said that he did not realise that it was an offence. He said that he thought the police action in cautioning the pedestrian was “a bit rough”.
The appellant admitted to two previous convictions. They were on 8 February 1995 driving with excess blood alcohol and exceeding the speed limit, upon which he was convicted and fined, and as well he lost his licence for six months.
The other conviction was recorded on 16 October 1996 at the Adelaide Magistrates Court for urinating in a public place, upon which the appellant was fined.
When called upon to put his submissions, the appellant read out a prepared statement. A copy of this statement has been annexed to an affidavit put before me. There is no suggestion that it does not represent what he told the learned sentencing magistrate.
The gist of the statement is that on the day in question the appellant was suffering from a severe leg infection for which he was taking tablets. He took the first course of tablets, which was a double dose about two hours before the offence. He says that he then drank modestly, about two Bundaberg rums, over a period of about an hour.
Subsequently he found out from the chemist who dispensed the medication, that it profoundly accentuated the affects of alcohol. He says that his friends who were with him noticed that he was acting out of character. He says further that he was upset at the treatment he thought was being meted out unfairly to the pedestrian at the intersection, but that he apologised to the police and told them that he had a lot of respect for the police in general.
The appellant further put it to the learned sentencing magistrate that he was only 22 years of age, that he worked as an apprentice motor mechanic, and had limited means. He does not indicate that he went into detail as to what his means were to the learned sentencing magistrate, but he sets out what he says is his financial position in the affidavit which he has put before me, on which there is a statement of liabilities, the repayments of which are substantial.
He says that his earnings as an apprentice motor mechanic are “quite minimal” but he does not say how much per week they are.
As to the grounds of appeal which I have summarised, the gist of his submission is that the magistrate appeared disinterested in the statement which he read; that there were distractions in the courtroom at the time; and that he had the impression that the learned sentencing magistrate did not fully consider the points which he was raising.
The appellant has been assisted in the preparation of the hearing of appeal by his father. With that assistance has prepared a very substantial document indeed described as an outline of argument but what is, in effect, a very detailed argument in support of the appeal. In that document he refers to a number of legal authorities and joins issue with various assertions in the affidavit of the police prosecutor.
Of some importance is the fact that he joins issue with the statement by the police prosecutor as to the words which were said to have been heard at the time of the offence, and which constitute the offensive language the subject of the charge. He says that the words he used were “Hey you pigs” and words to the effect of “Give the poor bastard a chance”, or “a break”. He says that he was interrupted from the process of explaining the difference in what he says were the words which he used to the learned sentencing magistrate, who pressed on with the proceedings in a manner which precluded him from going into that.
In some cases a difference of that kind would be important and it would be necessary to consider what action should be taken, given that the appellant was unrepresented at the hearing in the Magistrates Court. However, it seems to me that what he asserts to have been the language which he used, in terms of its seriousness, did not differ much from the language which the police officers said they heard. In those circumstances and particularly bearing in mind the view which I have reached as to the outcome of the appeal, I do not pursue that aspect of the matter further.
It does appear, however, that there were a number of people present at the time and many of them were using swear words. It may well be that words have been picked up and attributed to the appellant which, in fact, were words being used by others. Be that as it may, the conviction was recorded for the offence charged and the central element in the submissions which have been put to me is that, apart from the quantum of the fine, the recording of the conviction was erroneous.
The magistrate was an experienced magistrate and I do not believe that there could be anything in the suggestion that he failed to take account of what the appellant was putting to him. On the other hand, no doubt the magistrate was in the course of a busy list, and I accept that the appellant was left with the impression that his detailed, prepared remarks had gone over the head of the magistrate.
At the end of the day it is necessary for me on appeal to consider whether or not the appellant has demonstrated in either of the two respects contended for that there is appealable error.
As to the quantity of the fine, the maximum penalty for this offence is 3 months imprisonment or $1,000 fine. In those circumstances, I am unable to find that the amount of the fine $100 is excessive. That ground of appeal is dismissed.
I have considerable difficulty, however, with the other ground and, in particular, with the recording of a conviction. True it is that the offence was typical of its kind and it is of a class of offence which will often be committed by people who are not in full control of their faculties, whether by reason of liquor or by reason of other circumstances.
The fact remains, however, that the appellant is a young man with very little in the way of prior convictions. He wishes to travel and change his employment, as to both of which matters the recording of a further conviction may have an adverse affect upon his prospects.
This court does not lightly interfere with the discretion of a magistrate on a discretionary matter such as whether or not the power under section 16 of the Criminal Law Sentencing Act should be exercised so as to avoid the recording of a conviction. I do note, however, that in some of the material before me, which has not been challenged by Ms O'Keefe who appeared for the respondent, the appellant asserted that when he asked that no conviction be recorded, the learned magistrate invited a comment from the prosecutor which was negative, after which he recorded the conviction now under appeal.
It seems to follow from that that the magistrate may have been influenced to some degree at all events by the attitude of the prosecutor. There was, of course, nothing wrong with that, if that is in fact what happened, as the prosecution has the right to be heard on any matter related to sentence. But standing back from the matter at this stage, I think that in all the circumstances the character, antecedents and age of the appellant, together with the circumstances which, in my opinion, were extenuating in the sense that they were, to a degree at least, explained by the combination of the medication and alcohol, amounted to good reason for not recording a conviction within the meaning of those words in s16 of Criminal Law Sentencing Act 1988.
In all the circumstances I would allow the appeal for the limited purpose of varying the order so that a conviction is not recorded
The appeal will be allowed for that purpose, but the other orders made will remain in full force and effect, in particular the fine and the time given within which to pay it.

[1998] SASC 6868

18 September 1998