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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Lyons, Greg --- "McKellar v Smith; Booth v Smith" [1983] AboriginalLawB 8; (1983) 1(7) Aboriginal Law Bulletin 8


Taylor v Beames

Criminal law - conviction for being drunk in public place - appeal against severity of $2 fine with $11.50 costs - appellant remanded without bail for four days - period in prison to be taken into account - conviction without penalty not available in circumstances - reduction of fine to $1 with no order as to costs.

Taylor v Beames

Supreme Court of South Australia (Mitchell J)

17 November 1982

Casenote by Greg Lyons

The appellant, an eighteen year old Aboriginal man with no previous convictions, appealed against the penalty imposed upon conviction for being drunk in a public place, contrary to s.9 of the Police Offences Act 1951 as amended. The appellant had been fined $2 and ordered to pay $11.50 costs. His sense of grievance arose in the following circumstances.

Arrested late at night for being drunk in a public place, namely the lounge bar of Adelaide's Overway Hotel, the appellant was brought before the Adelaide Magistrate's Court at 9.45 a.m. the following morning, Saturday, 28 August 1982. He was not given an opportunity to plead guilty to the offence nor to seek bail but was remanded in custody until the following Friday, 3 September. The appellant had been unrepresented at this first court appearance. A solicitor, Mr Braithwaite, was contacted on behalf of the appellant and had the charge listed for 1 September, by which time the appellant had spent four days in gaol. At the hearing before a second magistrate on 1 September, it was submitted that because the appellant had already spent four days in gaol, it was appropriate that he be convicted without penalty. Notwithstanding, he was fined $2 and ordered to pay $11.50 costs. His appeal was on the basis that in the circumstances, the fine and order to pay costs were excessive.

Mitchell J stated:

This is not an appeal against the failure to grant bail or the length of the remand without the appellant being given an opportunity to plead guilty, nor could there be such an appeal. Nevertheless it is a matter which has caused me some concern and I express the hope that a similar situation will not arise again. Both counsel informed me that the appellant was one of a number of young men arrested in the same place on similar charges; that it was alleged that when they were brought to the police station and locked in cells they created a disturbance and that their behaviour in court was such that the special magistrate, who remanded them, may have believed that the appellant was not in a fit state to plead. I agree with the submission which Miss Whimp made that, if the appellant's behaviour in court was such as to constitute an offence under s.46 of the Justices Act, 1921 as amended, he should have been charged with that offence and that, if he was behaving in a disorderly manner in the cells, he should have been charged with an offence relating to that conduct. He should certainly not have been remanded without bail because it was believed that he had committed an offence other than that with which he was charged, if that was the reason for the remand. It may be that the special magistrate before whom he first appeared was of the opinion that the appellant was not in a fit state to plead. If that was so he could have been either remanded until later in the day, and bearing in mind that the 28th August 1982 was a Saturday this would doubtless have been inconvenient for the court, or the magistrate could have certified for bail and ordered that his bail bond be not taken until he was in a fit condition to understand the terms of it.

No justification for remanding the appellant on a charge of this nature for a period of six days has been shown and it would be a matter of deep concern if any court were to use a remand without bail as an indirect means of imposing a penalty. A penalty of imprisonment for an offence against s.9 of the Police Offences Act is, in any event, usually inappropriate. I have been informed by both counsel that it has not been the practice of courts of summary jurisdiction, at least in the metropolitan area, to impose imprisonment for a fast or second offence, although the penalty prescribed is a fine of $10 or imprisonment for 14 days.

There is no doubt that, as Miss Whimp submitted, the period of imprisonment served by the appellant was properly to be taken into account by the special magistrate in imposing penalty in this case. Mr Ahern referred me to s.9(2) of the Police Offences Act under which a person convicted of an offence against s.9(1) may, on the application of the complainant, be ordered to pay (inter alia) a reasonable sum to cover the expenses of keeping him in custody until trial. That does not lead me to doubt that ordinary sentencing principles apply to the offence and one such principle is that time spent in custody prior to conviction should be taken into consideration by a court which sentences the person who has been so confined. For this reason Miss Whimp submitted that the special magistrate before whom the plea of guilty was taken should have refrained from imposing a penalty. She conceded that she had some difficulty with this argument in view of the legislation. Under s.75(2) of the Justices Act the power to dismiss the complaint without proceeding to conviction, or to discharge the defendant without imposing a penalty, is conditional upon the court being of the opinion that the offence was of so trifling a nature that it is inexpedient to inflict any punishment.

In Crafter v Schubert (1934] SASR 84 at 86 Napier J. (as he then was) referred to 'the typical instance of a trivial offence' as being 'where the contravention is unintentional or due to inadvertence.' The facts which both counsel have put to me disclose that the offence committed by the appellant could not be regarded as trivial in that sense.

But Miss Whimp valiantly contended that the special magistrate who imposed penalty should have exercised his discretion under s.4 of the Offenders Probation Act, 1914 as amended, to dismiss the complaint or to convict without penalty. She suggested that he could do so having regard to the 'antecedents' of the appellant and that, the word antecedents being one of very wide meaning, the special magistrate could have had regard to the fact that the appellant had been remanded in custody for four days prior to being dealt with. Certainly the word antecedents is of very wide application. It is, as Lord Goddard CJ said in R v Vallett [1951] 1 All ER 231 at 232, 'as wide as can be conceived.' Nevertheless I do not think that it can be extended beyond the meaning ascribed to it in the shorter Oxford English Dictionary, 'the events of a person's past history.' In Cobiac v Liddy [1969] HCA 26; (1968) 119 CLR 257 at 277 Windeyer I said of the word as used in s.4(1) of the Offenders Probation Act: 'It refers I think primarily to the offender's previous history and past record.' It cannot, in my view, refer to something which has happened since the commission of the offence for which the offender is to be sentenced. In these circumstances it seems to me that the sentencing magistrate could not properly have convicted without a penalty or dismissed the complaint.

It was however clear that the appellant had suffered a greater penalty than was ordinarily imposed in courts of summary jurisdiction in that he had suffered a term of imprisonment which I am assured by both counsel is not ordinarily imposed for this offence. The sum of $2 was a very small fine, but the appellant was also ordered to pay costs amounting to $11.50 making a total of $13.50. Having regard to the fact that he had already been at least sufficiently punished I find that this penalty was, in the circumstances which I have described, manifestly excessive. I think that justice would have been met had he been fined $1 and had there been no order as to costs.

The appeal will be allowed; the penalty and order for costs set aside and in lieu thereof there will be substituted a fine of $1 and no order as to the costs of the proceedings in the court of summary jurisdiction.

Miss K.A. Whimp of the Aboriginal Legal Rights Movement, South Australia, appeared for the appellant.

Mr M.W. Ahern instructed by Mr G.C. Prior Q.C., Crown Solicitor, appeared for the respondent.

G.L.


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