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Tazebe v Police

Tazebe v Police

Case [2013] SASC 194

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAZEBE v POLICE
[2013] SASC 194
Reasons for Decision of The Honourable Justice Nicholson
13 December 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
On 12 September 2013 the appellant was sentenced in the Magistrates Court for the offence of assault causing harm. Pursuant to s39 of the Criminal Law (Sentencing) Act 1988 the Magistrate discharged the appellant without sentence but on a bond to be of good behaviour and to be called up for sentence following any breach of the bond. The Magistrate also ordered the appellant to perform 250 hours of community service and exercised the discretion to record a conviction.
The appellant appeals solely on the ground that the Magistrate erred in the exercise of her discretion to record a conviction.
Held:
1. Appeal allowed on the basis that: (a) the Magistrate placed undue weight on the seriousness of the offending; and (b) when all of the circumstances are considered, the Magistrate placed insufficient weight on the effect of conviction upon the appellant.
2. The sentence of the Magistrates Court on 12 September 2013 be set aside.
3. Upon resentencing the appellant is to be subject to the same sentencing outcome as ordered by the Magistrate but with the exception that no conviction is to be recorded.
4. The Magistrate's orders that court costs be remitted, that the victims of crime levy be paid, that prosecution costs of $100 be paid and that the appellant pay compensation to the victim in the sum of $800 are undisturbed.
Criminal Law (Sentencing) Act 1988 s16, s39; Magistrates Court Act 1991 s42, referred to.
R v Yousef [2005] SASC 203; Hodgins v Police [2008] SASC 176; R v Stubberfield [2010] SASC 9; Gilev v Police [2013] SASC 108; House v The King (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321; Naera v Police (1995) LSJS 328; Taylor v Hayes (1990) 53 SASR 252; Ware v Betts (1987) LSJS 212; Wessling v Police (2004) 88 SASR 57; R v Briese (1997) 92 A Crim R 75; McAvaney v Quigley (1992) 58 A Crim R 457; Attorney-General v Smith [2002] TASSC 10; Zefi v Police [2003] SASC 218; Szep v Police [2003] SASC 144; Brown v Police [2009] SASC 45, considered.

TAZEBE v POLICE
[2013] SASC 194
Magistrates Appeal: Criminal

NICHOLSON J.
Introduction
On 12 September 2013 the appellant was sentenced in the Magistrates Court for the offence of assault causing harm. The appellant was convicted following a trial during which the charge was contested, unsuccessfully, on the basis of self-defence. In sentencing the appellant, the Magistrate relied upon s39 of the Criminal Law (Sentencing) Act 1988 to discharge…

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.

Continue reading Tazebe v Police

Details

AGLC: Tazebe v Police [2013] SASC 194
Case: [2013] SASC 194
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, the appellant, Tazebe, appealed against the decision of the Magistrates Court to record a conviction for an assault causing harm offence. The Magistrate had sentenced Tazebe without penalty but required him to enter into a bond to be of good behaviour and to be called up for sentence in the event of a breach of the bond. The Magistrate also ordered Tazebe to perform 250 hours of community service and to pay compensation to the victim in the amount of $800. The sole ground of appeal was that the Magistrate erred in exercising her discretion to record a conviction. The appellant contended that the Magistrate had placed undue weight on the seriousness of the offending and insufficient weight on the effect that a conviction would have on his immediate and future employment. The respondent submitted that the Magistrate had considered the appellant’s personal circumstances, including the risk to his employment, and had decided that the need to give effect to general deterrence outweighed the potential effect of a conviction on the appellant’s future employment prospects. The court held that the Magistrate had erred in exercising her discretion to record a conviction. The court found that the Magistrate placed undue weight on the seriousness of the offending and insufficient weight on the effect that a conviction would have on the appellant’s immediate and future employment. The court found that the appellant was a first offender with no prior convictions. He had arrived in Australia from the Sudan at a young age and had faced significant difficulties in making his way in an alien country. The appellant’s background and the circumstances of the offending combined to reduce significantly the moral culpability of the appellant for what was otherwise, objectively, serious offending. The court found that the appellant’s youth, immaturity, and personal circumstances were such as to exacerbate the potential effect of a conviction in this respect. The court found that the appellant had been, in the overall scheme of things, firmly if not severely punished. The appellant’s plans for the future involve the possibility of pursuing the military as a career. A referee who is a member of the Ex-military Rehabilitation Centre had told the court that a criminal record would deny the appellant such an opportunity. The court found that a conviction will hamper the appellant’s ability to be a leader in his own community and in the community generally. The court allowed the appeal, set aside the sentence of the Magistrates Court and ordered that Tazebe be released on a bond in the amount of $1,000 to be of good behaviour for a period of two years with no conviction recorded. The terms of the bond will include that the appellant is to be called up for conviction and sentence in the event that the bond is breached, the appellant is to perform 250 hours of community service within 12 months of 12 September 2013 and the appellant must report within two working days of today to the Courts Unit of the Department of Correctional Services. To the extent that the appellant has already performed some hours of community service, in accordance with the Magistrate’s earlier order, those hours are to be credited against the 250 hours ordered by the court today. The Magistrate’s orders that court costs be remitted, that the victims of crime levy be paid, that prosecution costs of $100 be paid and that the appellant pay compensation to the victim in the sum of $800 are not to be interfered with.

Orders