Nelson v McLennan [2002] ACTSC 59 (31 May 2002)

Last Updated: 18 June 2002

BENJAMIN RAYMOND NELSON v SCOTT DONALD McLENNAN [2002]

ACTSC 59 (31 MAY 2002)

CATCHWORDS

APPEAL - discretion of court not to record a conviction - whether error demonstrated - requirement to give reasons - sufficient indication of basis of decision.

Crimes Act 1900 (ACT), s 26, s 402

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 7 of 2002

Judge: Gray J

Supreme Court of the ACT

Date ex tempore judgment: 31 May 2002

IN THE SUPREME COURT OF THE )

) No. SCA 7 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: BENJAMIN RAYMOND NELSON

Appellant

AND: SCOTT DONALD McLENNAN

Respondent

EX TEMPORE ORDER

Judge: Gray J

Date: 31 May 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from a conviction and fine of $400.00 imposed upon the appellant by the Australian Capital Territory Magistrates Court in respect of the charge of common assault. The offence of assault under s 26 of the Crimes Act 1900 (ACT) is punishable by imprisonment for two years.

2. The appellant had entered a plea of guilty to the charge. The ground of appeal is that the penalty imposed is too severe "in the special circumstances of the case and of the appellant". It appears, from what was put to me in written and oral submissions, that the gravamen of the appellant's complaint is that in sentencing the appellant the Magistrate did not invoke the provisions of the Crimes Act 1900 which would have enabled him to not proceed to a conviction and to discharge the appellant upon recognizance.

3. The relevant part of s 402 of the Crimes Act 1900 provides:

"(1) Where -

(a) a person is charged before a court of the Territory with an offence against a law of the Territory; and

(b) the court is satisfied that the charge is proved but is of opinion, having regard to -

(i) the character, antecedents, age, health or mental condition of the person; or

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;

the court may dismiss the charge or, without proceeding to a conviction, by order, direct that the person be discharged upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court ..."

4. The real issue on this appeal is whether the Magistrate can be shown to be in error in failing to exercise the discretion given to him by that section to not record a conviction. In that regard I was referred by the appellant to the High Court decision of Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257.

5. The assault occurred when the appellant and some of his friends were required to leave the Holy Grail Night Club in Civic on 18 December 2001 at about 11.15 pm. The appellant swung his closed fist at one of the door staff, striking him in the left eye causing a nose bleed and bruising under the eye.

6. In the submission made to the Magistrate on the appellant's behalf, it was denied that his action was unprovoked and it was put that the appellant responded to the victim telling him to "fuck off" and proceeding to push him down the stairs. That submission is contrary to what the prosecution put as the facts concerning the assault and does not have any evidentiary basis.

7. However, the Magistrate did indicate that he would deal with the appellant on the basis that there may have been some degree of provocation directed towards him. I consider that in so doing he dealt with the appellant on the most favourable view of the facts that he could have taken on the material before him.

8. The appellant says that he was intoxicated at the time. He is now 23 years of age, being 22 years of age when the assault occurred. He is a first offender of good character. He pleaded guilty at the first available occasion and he apologised in writing.

9. The Magistrate was expressly asked to exercise his discretion under s 402 of the Crimes Act. He was specifically addressed on the nature of the offence and the extenuating circumstances. He had before him the character, antecedents, age and health of the appellant. He was aware of the affect that a conviction might have on the appellant and he apparently gave consideration to that aspect.

10. Nothing was put to me to show that the Magistrate did not have before him all of the matters relevant to the exercise of his discretion. It was also put in the appellant's written submission that the,

"... learned Magistrate accepted that the appellant was a person of good character, similarly the learned Magistrate also accepted that a conviction would have an adverse impact upon the appellant's prospect of securing degree related employment."

11. There is nothing to indicate that the Magistrate did not give these matters appropriate weight or, as I have earlier discussed, that he misapprehended the facts of the offence. In particular, I should not interfere with the exercise of the Magistrate's discretion where it is not shown that he did not take into account, or that he misapprehended, the circumstances that might have called for its exercise.

12. I dismiss the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 18 June 2002

Counsel for the Appellant: Mr R Friesen

Solicitor for the Appellant: Dibbs Barker Gosling

Counsel for the Respondent: Mr D Morters

Solicitor for the Respondent: Director of Public Prosecutions, ACT

Date of hearing: 31 May 2002

Date of judgment: 31 May 2002