Sladic v McDonough
[2014] ACTSC 257
•1 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Sladic v McDonough |
Citation: | [2014] ACTSC 257 |
Hearing Date: | 1 July 2014 |
DecisionDate: | 1 July 2014 |
Before: | Murrell CJ |
Decision: | Application to adduce fresh evidence refused. Application for adjournment refused. Appeal against conviction dismissed. Appeal against sentence upheld but limited to reparation order. |
Category: | Principal Judgment |
Catchwords: | EVIDENCE – Application to adduce fresh evidence – whether evidence relevant to fact in issue – application for adjournment APPEAL – Appeal against conviction – whether intention to permanently deprive owner or property APPEAL – Appeal against sentence – whether sentence manifestly excessive – sentence of conviction order and fine of $750 – reparation order |
Parties: | Josip John Sladic (Appellant) Katherine McDonough (Respondent) |
Representation: | Counsel: Self-represented (Appellant) Ms E Beljic (Respondent) |
| Solicitors: Self-represented (Appellant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number: | SCA 109 of 2013 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Doogan Date of Decision: 15 November 2013 Case Title: Katherine McDonough v Josip John Sladic Court File Number: CC No 3379 of 2013 |
MURRELL CJ:
On this appeal, the only issue before the Magistrates Court was whether the Magistrate could have been satisfied beyond reasonable doubt that, in removing a steel cage air-conditioning guard that belonged to Ms Tarrant, the appellant intended to permanently deprive her of that property.
The appellant seeks leave to adduce fresh evidence that falls into seven categories. The application to call the items of fresh evidence is refused for the reasons that follow.
The first item of fresh evidence is evidence from the owner, Ms Tarrant. At the hearing before the Magistrates Court it was not disputed that Ms Tarrant was the owner of the item that was taken. However, the appellant asserted that he had intended to return the item, had left a note to that effect under the door of the owner’s business premises, and had also sent correspondence to her residential premises.
The issue of the note was raised with Ms Tarrant’s husband Mr Cross. It seems to have been accepted that he would have become aware of any correspondence that was delivered to the residence. He denied awareness of any such correspondence. In the Magistrates Court the appellant did not indicate that he wanted to question Ms Tarrant. He says that he was under the impression that she was to be called. When he found that she was not to be called, it was up to him to raise the matter and he did not do so. In any event, for the reasons that I have indicated, it seems unlikely that she would have given evidence in support of the appellant’s contentions.
The second item of evidence that the appellant seeks to put before this Court is evidence of a Mr Parslow. Mr Parslow witnessed the removal of the cage. While the removal is not in dispute, the appellant is concerned that the Magistrate found that the circumstances of the removal were covert or secretive, and the Magistrate used that finding to support her finding of intention to permanently deprive. The evidence of Mr Parslow would go to his observations regarding the removal of the item at, so the appellant says, about 8 pm on 8 October 2012.
There is no dispute that the item was removed at night-time during the October long weekend in 2012. I very much doubt that Mr Parslow could say anything of substantial relevance to the matter. There is no dispute that the appellant removed the cage with an angle grinder, causing a loud noise, such as would attract the attention of members of the public who were in the vicinity. Therefore, it seems that evidence from Mr Parslow would add nothing significant to the information already before the Court.
The third item of evidence that the appellant seeks to introduce is information from the Planning and Land Authority of the ACT Government to the effect, the appellant says, that the item was illegally positioned on the roof above or in the vicinity of his unit. He says that, while he did remove the item, there was a good reason for the removal.
Although such material may support the appellant's reason for removing the item, it would say nothing one way or the other about whether there was an intention to permanently deprive.
The fourth item of evidence is a folder of material concerning the appellant himself. Some material supports his contention that, soon after removing the air-conditioner cage, the appellant had eye surgery, and therefore had difficulty returning the cage to its rightful owner. There has never been a dispute that the appellant had eye surgery soon after the removal of the cage and that he was therefore, to some extent, incapacitated for a period thereafter.
The folder also contains character references. They would not go significantly to the question of intention to permanently deprive, although, of course, character evidence is relevant. However, the prosecution case turned on the undisputed fact that there was a serious ongoing conflict between the appellant and the owner of the cage concerning the location of the cage, so character evidence may have been of limited relevance.
The folder also contains photographs of damage caused by the cage and the obstruction to the appellant's view that was caused by the cage. Again, that material may show that the appellant had a motive to remove the cage, but would not say much, if anything, about intention to permanently deprive. Indeed, in oral submissions, the appellant agreed that the material was more relevant to sentencing.
The fifth item of evidence is evidence of a police constable to the effect that, on a prior occasion, the appellant was a victim of misconduct on the part of the owner. Again, such material could only support the appellant's motive for removing the item, which is not in dispute.
The sixth item of fresh evidence is the introductory part of the record of interview. The appellant says that, prior to commencement of the record of interview, he informed police that he did not want to be interviewed.
The record of interview was not critical, and perhaps was not important at all to the Magistrate's decision about intention to permanently deprive. In the record of interview, the appellant admitted to removal of the item. However, the removal of the item was established independently of the record of interview. In her reasons, the Magistrate did not even refer to the record of interview. Disregarding the record of interview, there was sufficient evidence about removal of the item. Exclusion of the interview would not have changed the outcome.
The seventh item of fresh evidence is a domestic violence order. The appellant says that this order protects him from another owner at the relevant commercial premises. and supports his assertion about why he did not leave the cage at the front door of the owner's premises and did not physically return it to her commercial premises.
Such evidence is too peripheral to the issue to warrant the calling of fresh evidence on an appeal. Indeed, the evidence may have been deemed irrelevant had it been tendered before the Magistrate.
Each item of new evidence that the appellant seeks to lead on the appeal is either irrelevant to the question of intention to permanently deprive, or of such peripheral relevance that the Court would not in its discretion grant leave to admit it. The application to lead fresh evidence is refused.
The appellant seeks an adjournment on two bases. First, he says that he requires representation. The appeal has been listed for a considerable time. The appellant approached a solicitor, who declined to accept instructions on the appeal.
The second basis for the application is that the appellant says that he had written submissions in his car, but the car was stolen. Consequently, he does not have access to those submissions. The issue is very simple one: whether there was adequate evidence for the Magistrate’s Court to be satisfied beyond reasonable doubt of an intention to permanently deprive. The appellant ran the proceedings in the Magistrates Court. He has an intimate knowledge of the material. The offence is a very minor offence, for which a fine was imposed. I take into account not only the appellant's interests but the broader interests of justice, which include the expeditious hearing of matters in circumstances where the Court has limited resources.
For these reasons, the application for adjournment is refused.
The appellant appeals against the conviction imposed by the learned Magistrate in relation to the offence that between 6 and 9 October 2012 he took a steel cage air-conditioning guard belonging to Ms Tarrant of Bond Hair Religion valued at about $1000 with the intention of permanently depriving the owner of that property.
On 25 November 2013 the appellant was convicted of that offence, and fined the sum of $750, with a reparation order.
There was no dispute that the appellant removed the cage belonging to Ms Tarrant from the roof of a building at 68 Jardine Street, Kingston, being commercial premises. The appellant owns and resides in a unit in that block. The owner of the air-conditioner guard runs a hair salon at the premises.
In relation to the question of intention to permanently deprive, the Magistrate relied on a number of matters in deciding that there was an intention to permanently deprive. First, that the appellant removed the cage at night. The Magistrate described this as "nefarious". Second, that he kept the property for five months and returned it only after the police approached him. The appellant returned the cage very soon after police contacted him.
The Magistrate rejected the appellant's evidence that he had attempted to return the cage. She considered that, had he wanted to return the cage he could have left it at the door of the hair salon. The appellant sought to traverse that finding, raising reasons as to why he could not leave it at the door of the hair salon. But I do not take her Honour's decision to have turned on that fact; that was merely an aside. The reasons raised by the appellant were, for example, that he had undertaken eye surgery which rendered him incapacitated for a period of time, and that he was concerned because he was in conflict with another commercial owner at the address and so did not want to leave the cage at the front door of the hair salon. The appellant said that he had sent letters and notes to the owner indicating a willingness to return the item. As stated above, the sending of letters was raised with the owner's husband and he denied any knowledge of those letters. The owner was not called at the hearing. Her Honour was well entitled to reject the appellant's evidence of any intention or attempt to return the cage to the owner and to find, in effect, that the assertions raised by the appellant were a matter of recent invention.
Her Honour referred to the uncontested evidence about the appellant's motives. She found that the appellant considered the removal of the cage to be a "self-help measure", to which he resorted to due to his frustration at the planning authority’s lack of action. There had been a long history of conflict between the appellant and the owner concerning the placement of the air-conditioner, and the appellant asserted that it was positioned illegally. Of course, whether it had been put into position legally or illegally is irrelevant to the question of intention to permanently deprive the owner of the property.
The appellant's resort to a self-help measure is consistent with his decision to remove the item, but it is also consistent with an intention to permanently deprive. Of itself, that motive does not prove an intention to permanently deprive, but the Magistrate was entitled to consider that that motive was consistent with an intention to permanently deprive.
There was abundant evidence upon which the Magistrate could conclude that there was an intention to permanently deprive the owner of the air-conditioning cage. No error of fact or law has been established. These proceedings are an appeal by way of review, not an appeal by way of rehearing. There was no error in the way in which her Honour reasoned that there was an intention to permanently deprive. The appeal against the finding of guilt is dismissed.
The appellant contends that the sentence was manifestly excessive in that it involved a conviction rather than a non-conviction order and a fine of $750. He contends that the Magistrate did not take into account evidence of extenuating circumstances, including character references, medical certificates and material showing damage occasioned by the cage to the appellant's premises and enjoyment of his premises.
A folder may have been handed to the Magistrate that demonstrated damage and also contained character references, but that folder was somehow mislaid. It is not clear from the Magistrate's reasons whether those matters were taken into account on sentence. The matters would have been capable of amounting to extenuating circumstances and, either by themselves or in conjunction with the appellant's prior good character, could have supported a non-conviction order.
However, that the primary reason that the Magistrate decided that a non-conviction order was inappropriate was that the appellant had instituted a self-help measure and it was important to send a strong message in relation to persons who elect to take the law into their own hands. Further, and implicitly, the Magistrate found that the appellant had demonstrated no remorse or contrition in relation to his conduct. Even if there was an error in failing to consider material in support of extenuating circumstances (which is unclear due to the misplacement of material), in the exercise of my discretion I would decline to intervene with the order of the Magistrate convicting the appellant and fining him the sum of $750. It was a very small penalty when seen against the maximum available penalty of $5000 and/or six months' imprisonment.
The appellant also appeals against the reparation order. In relation to that order, the relevant material was in Exhibit 1 on the appeal and part of Exhibit 2. On the appeal, that was supplemented by further material.
The evidence before the Magistrate did not indicate any damage to the air-conditioning unit itself. In relation to the cage, it did not indicate any damage to the cage as such, although it did show damage to the bolts that attached the cage to the base. It would appear that the owner would be entitled to the cost of replacing bolts and the cost of re-bolting the case to the air-conditioner, those being the expenses incurred as a direct result of commission of the offence.
The material in Exhibit 1 does not indicate the relevant cost; rather it refers to the labour to "install condenser cage" and to the cost of purchasing a condenser cage. The state of the evidence in relation to reparation is quite uncertain.
There is an apparent error in relation to this matter in that the evidence does not support the full amount of the reparation order that was made. I am satisfied that some cost would be incurred and, doing the best that I can, I will assess it at $250.
The appeal in relation to the reparation order is allowed, and the reparation order is set aside. In lieu, the appellant is ordered to pay reparation in the sum of $250.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 1 October 2014 |
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