Siguenza v Police No. Sccrm-03-852

[2003] SASC 301

SIGUENZA v POLICE
[2003] SASC 301

Magistrates Appeal (Ex tempore)

1. Doyle CJ               This is an appeal against a sentence imposed by the Magistrates Court. The appellant was charged with assaulting a family member contrary to s39(1) of the Criminal Law Consolidation Act 1935 (SA). The victim was his wife. He was also charged with damaging property without lawful authority contrary to s85(3) of the Criminal Law Consolidation Act.  The submissions to the magistrate indicated that the damage done was estimated at $5000. I take this to be the cost of repairs and replacement. The property was the property of the appellant’s wife.

2. The appellant was unrepresented before the Magistrates Court and pleaded guilty when the matter first came before the court. The magistrate recorded a conviction and, exercising the power under s39 of the Criminal Law (Sentencing) Act (1988) SA, without imposing a penalty, discharged the appellant upon him entering into a bond in the sum of $1000 for a period of two years. The conditions of the bond were that the appellant be of good behaviour and come up for sentence if called upon.

3. The only issue on appeal is whether the magistrate erred in recording a conviction. The magistrate had power under s39 to refrain from recording a conviction. The police prosecutor’s affidavit states that the appellant made no submissions apart from admitting the facts alleged. The appellant has no prior convictions.

4. In brief, the allegations were these.  The appellant came home very drunk. When his wife asked where he had been he became angry, assaulted her and damaged or smashed windows, furniture and household items. When questioned by the police the appellant said he was so drunk he could not remember how much he had had to drink and did not know why he assaulted his wife or damaged the property. The assault was not a minor one, the damage was significant. The circumstances, ignoring the appellant’s personal circumstances, warranted the recording of a conviction.

5. The appellant complains that he did not realise that a conviction might be recorded. He was not told by the magistrate that he could and should consider putting matters before the magistrate that might persuade the magistrate not to record a conviction.

6. The appellant has filed an affidavit which explains that he did not understand that when a magistrate asked if he had anything to say, that was the time to put forward mitigating circumstances. The appellant was under the impression that the matter was probably going to be adjourned in any event. They are the reasons why he put nothing forward. I should add that as he was pleading guilty, in the circumstances he did not understand that there was any reason why he should say anything more at that time.

7. It is not necessary to go into the explanations for all this but having regard to the matters the appellant puts forward in his affidavit, I am satisfied that he has truthfully stated how things occurred. Counsel for the respondent does not contest the apparent truth of what the appellant says.

8. In the appellant’s affidavit there are also circumstances of a personal nature put forward that might make it appropriate not to record a conviction. However, I make it clear that when all the circumstances are explained, the decision made might still stand.  But, as I have said, there is material there which, if put before a magistrate, might persuade the magistrate not to record a conviction.

9. I should add that the magistrate did not, in terms, inform the appellant that he should consider the possibility of submitting that no conviction should be recorded. The failure to do this will not always be an error. In some cases the seriousness of the offence might mean that there is no point in doing so and no need to do so. However, this was a borderline case.  It is one in which, in my opinion, the magistrate should have directed his mind to the possibility of not recording a conviction and should have directed the appellant’s attention to that possibility.

10. The incident was one that occurred between husband and wife. In saying that I am not suggesting by any means that men are entitled to assault their spouses and to damage matrimonial property; I merely make the point that the circumstances of the assault were such that it would have been appropriate to inquire a further as to the circumstances. And as I have said, I am satisfied that the appellant did not understand the procedure that the magistrate was following.

11. In the circumstances, I consider that justice requires that the appeal be allowed and that the magistrate’s decision to record a conviction be set aside. In the circumstances, I think it best that I also set aside the bond so that a magistrate before whom the appellant ultimately appealers will have a clear field in which to consider the question of sentence.

12. Accordingly, I allow the appeal, set aside the sentence imposed by the Magistrates Court, and order that the matter be remitted to the Magistrates Court for the appellant’s plea of guilty to the offence to be further considered.

13. I order that there be no order as to the costs of the appeal.