Tkachenko v Police; Tkachenko v Police - [2012] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TKACHENKO v POLICE; TKACHENKO v POLICE
[2012] SASC 79
Judgment of The Honourable Justice Gray
11 May 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - OTHER ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeals against sentence - appellants pleaded guilty to breaching rule 256(1) of the Australian Road Rules, namely riding a bicycle without an approved bicycle helmet - appellants were convicted without further penalty - appellants were required to pay a victims of crime levy - where appellants were concerned with the need to protect themselves from ultraviolet radiation while riding their bicycles - whether the conviction should be set aside - whether the Court has a discretion to set aside the victims of crime levy.
Held: Appeal by each appellant allowed - convictions set aside - the Court does not have a discretion to set aside the victims of crime levy.
Victims of Crime Act 2001 (SA) s 4 and s 32; Criminal Injuries Compensation Act 1969 (SA) s 11; Criminal Injuries Compensation Act 1978 (SA) s 11 and s 13; Criminal Law (Sentencing) Act 1988 (SA) s 13, s 14, s 62, s 64, s 70I and s 70J; Australian Road Rules (SA) r 256(1), referred to.
Matulich v Police (2007) 252 LSJS 219; Police v Van Reesema [2010] SASC 183; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, considered.

TKACHENKO v POLICE; TKACHENKO v POLICE
[2012] SASC 79
Magistrates Appeals
GRAY J.

These two appeals are closely related and were heard together. Both appeals are against sentence.[1]
[1] The sentence imposed was conviction without further penalty. The defendants contended that convictions should not have been recorded.
On 17 September 2011, the defendants and appellants, Svetlana Tkachenko and Oxana Tkachenko, were issued with expiation notices that in substance alleged a breach of rule 256(1) of the Australian Road Rules, namely riding a bicycle without an approved bicycle helmet.
On 17 September 2011, the defendants rode their bicycles in suburban Adelaide. Neither was wearing an approved bicycle helmet. A police officer observed Oxana Tkachenko riding her bicycle north across a suburban road and then on the footpath. The constable stopped Oxana Tkachenko and in response to a question as to why she was not wearing a helmet, she responded that she did not know that it was compulsory to do so. At or about the same time, Svetlana Tkachenko was observed by the same constable to be riding on the footpath. The constable asked why she was not wearing a helmet, to which she responded “I’m not riding on the road, I didn’t know”. The defendants were issued with an expiation notice.
Both defendants made an application for review of the notice. In support of her application,…

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: [2012] SASC 79
Decision Date: 11 May 2012

CaseChat Overview and Summary

In the case of Tkachenko v Police, the defendants pleaded guilty to breaching rule 256(1) of the Australian Road Rules, specifically riding a bicycle without an approved bicycle helmet. The defendants were convicted and ordered to pay a victims of crime levy, but they appealed against both the conviction and the levy. The court was tasked with deciding whether the conviction should be set aside and whether it had the discretion to set aside the victims of crime levy.

The legal issues before the court were whether the conviction should be set aside due to the defendants' concerns about protecting themselves from ultraviolet radiation while riding their bicycles and whether the court had the discretion to set aside the victims of crime levy. The court had to balance the defendants' concerns with the statutory requirements of the Victims of Crime Act 2001 (SA) and the legal framework governing convictions and levies.

The court found that while it was inappropriate to impose convictions given the defendants' concerns about ultraviolet radiation, this did not exempt them from the requirement to pay the victims of crime levy. The definition of "conviction" under the Victims of Crime Act 2001 (SA) includes a formal finding of guilt, and thus, the defendants remained liable for the levy. The court also determined that it did not have the discretion to set aside the victims of crime levy. Consequently, the appeal against sentence was allowed, and the convictions were set aside, but the defendants remained liable for the victims of crime levy.

The court ordered that the convictions recorded be set aside and that the police should pay the filing fee incurred by each defendant when lodging their notice of appeal in the Supreme Court. The defendants' liability to pay the victims of crime levy remained unchanged.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

In the within proceeding, the defendants both pleaded guilty to the offence against rule 256(1) of the Australian Road Rules. As earlier mentioned, I have decided that it is inappropriate to impose convictions. However, this does not alleviate the defendants from the requirement to pay the victims of crime levy because the definition of conviction “includes a formal finding of guilt”.[8][8] Victims of Crime Act 2001 (SA) section 4.Conclusion For these reasons, the appeals against sentence should be allowed and the convictions recorded set aside. Both defendants remain liable to pay the victims of crime levy. The police should pay the filing fee incurred by each defendant when lodging their notice of appeal in the Supreme Court.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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