Armstrong v Saddler

[2024] ACTSC 263

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Armstrong v Saddler

Citation: 

[2024] ACTSC 263

Hearing Date: 

31 July 2024

Decision Date: 

26 August 2024

Before:

Baker J

Decision: 

The appeal is dismissed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  appeal against sentence imposed by Magistrates Court – assault occasioning actual bodily harm – family violence – ex tempore judgment – error in considering the availability of a good behaviour order – where appellant seeking non-conviction order – effect of conviction on appellant’s employment - no lesser sentence than imposed by Magistrate appropriate in all of the circumstances – appeal dismissed.

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), ss 7, 17, 34B

Crimes Act 1900 (ACT), ss 24, 28(2)(a)

Family Violence Act 2016 (ACT)

Magistrates Court Act 1930 (ACT), pt 3.10

Cases Cited: 

Acuthan v Coates (1986) 6 NSWLR 472

Agarwal v Coutts (No 2) [2024] ACTSC 92

Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495

Buxton v R [2017] NSWCCA 169

Currie v R [2013] NSWCCA 267

Director of Public Prosecutions v Chen [2023] ACTSC 154

GW v R [2015] ACTCA 15; 306 FLR 104

Greenwood v Barlee [2018] ACTSC 46

House v The King (1936) 55 CLR 499

KQE v Director of Public Prosecutions [2024] ACTCA 7

Mulato v R [2006] NSWCCA 282

R v AB [2022] NSWCCA 3

R v CV [2013] ACTCA 22

R v Elson [2020] ACTSC 264

R v FI [2017] ACTSC 190

R v Mauger [2012] NSWCCA 51

R v Henderson [2009] ACTCA 20

R v Stephenson [2010] NSWSC 779

R v Toumo’ua [2017] ACTCA 9

Rotner v R [2011] NSWCCA 207

The Queen v Miller [2019] ACTCA 25

Vuolo v Fall [2023] ACTCA 33

Parties: 

Hayden Terrence Armstrong ( Appellant)

Beau Dylan Saddler ( Respondent)

Representation: 

Counsel

K Lee ( Appellant)

E Knaggs ( Respondent)

Solicitors

Tim Sharman Solicitors ( Appellant)

ACT Director of Public Prosecutions

File Number:

CA 70 of 2023

Decision Under Appeal: 

Court/Tribunal:           ACT Magistrates Court

Before:   Magistrate Cook

Date of Decision:       6 December 2023

Case Title:                 R v Armstrong

Court File Number:     CC2022/5190

BAKER J:      

Overview

1․The appellant, Hayden Armstrong, pleaded guilty in the Magistrates Court to a charge of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (CC2022/5190), and not guilty to a further charge of intentionally and unlawfully choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act (CC2022/5191). The Magistrate accepted the appellant’s plea of guilty to the charge of assault occasioning actual bodily harm, but dismissed the choking charge following a defended hearing.

2․On 6 December 2023, the Magistrate convicted the appellant and imposed a fine of $1,400.00.

3․By way of a Notice of Appeal filed 28 February 2024, the appellant appeals from this sentence. The specific grounds of the appeal are as follows:

(a)His Honour erred in his assessment of the objective seriousness of the matter.

(b)His Honour erred in the application of s 17 of the Crimes (Sentencing) Act 2005 (ACT).

(c)His Honour erred in his consideration of the availability of a good behaviour order.

4․For the reasons outlined below, whilst the first ground of appeal is established, no lesser sentence than that imposed by the Magistrate is appropriate in all of the circumstances. Accordingly, the appeal must be dismissed.

Background

The proceedings in the Magistrates Court

Introduction

5․The appellant first appeared in the Magistrates Court on 30 May 2022. On 21 June 2023, the appellant entered a plea of guilty to the charge of assault occasioning actual bodily harm, and entered a plea of not guilty to the charge of intentionally and unlawfully choking, suffocating or strangling another person.

6․On 28 November 2023, the appellant appeared in the Magistrates Court for the defended hearing of the choking charge. At that hearing, the prosecution called evidence from the complainant, a doctor who examined the complainant after the hearing (Dr Barry), the Officer in Charge of the investigation, and a friend of the complainant who was present on the night of the alleged offending. The appellant’s record of interview was adduced in the prosecution case.

7․As noted above, the appellant was ultimately found not guilty by the Magistrate at the conclusion of this hearing. For this reason, it is not necessary to summarise all of the evidence that was adduced in the defended hearing. However, as no Statement of Facts was tendered in respect of the appellant’s guilty plea, it is necessary to briefly recount the evidence that was given by the complainant and the account that was given by the appellant in his record of interview as to the alleged incidents.

The complainant’s evidence

8․The complainant gave evidence that she had been in a relationship with the appellant for just under two years at the time of the alleged offending. She said that in the week prior to the offending, she had felt the relationship was deteriorating, referring to a large fight she had with the appellant.

9․The offending was alleged to have occurred on 28 May 2022, after the appellant played a game of football for the Ainslie Football Club, which the complainant watched. After the game, the appellant and the complainant retired to the club house where they both consumed alcohol.

10․The complainant gave evidence that she and the appellant became “cranky at each other” over the course of the evening. A friend of the appellant noticed the complainant was upset and took her outside to offer support.

11․The complainant and appellant continued arguing on the drive home from the football club. Whilst the appellant was driving, the complainant grabbed at his body and face. (The complainant was charged with common assault in relation to this incident. She pleaded guilty to this charge in separate proceedings.)

12․The argument continued until they arrived home to their unit in Campbell. Once inside their home, the appellant assaulted the complainant by punching her in the face, occasioning an injury to her right eye. (This was the act which gave rise to the charge of assault occasioning actual bodily harm, which the appellant pleaded guilty to.) The complainant fell to the ground and attempted to throw a water bottle at the appellant, but missed and hit their TV]. Other household items, including a vase, were also damaged.

13․The complainant gave evidence that after the first assault, whilst she was on the ground, the appellant put his hands around her neck and began to choke her. She said that she was concussed and struggling to breathe. She gave evidence that she managed to get her legs underneath the appellant and push him away with her feet.

14․The appellant presented with some scratching to his face, neck and shoulders, but the complainant could not recall when this had occurred. The complainant described the night as a ‘bit of a blur’ and gave evidence she felt dizzy and later vomited in the toilet.

15․During her examination in chief, the complainant was shown some photographs of her face and neck, which she described as “very bruised”. She recalled these were taken in the “following week” after the offending. These photographs, which were admitted in evidence, depicted extensive bruising around the complainant’s eye.

16․The complainant gave evidence that she and the appellant had previously engaged in reciprocal pushing and shoving, but this was the first time that the appellant had hit her and thrown her on the floor.

Appellant’s record of interview

17․The appellant was interviewed by police shortly after police were called to his home on 28 May 2023. In that interview, the appellant explained that he had lost his footy game, and “[the complainant] thought it was – I was in a bad attitude or had a bad attitude towards her after the loss, I guess”. He said that on the way home from the football game, the complainant became upset and was grabbing him and his clothes, which continued in the car park of their building, the lift and upstairs in their apartment.

18․The appellant told police that the complainant threw a water bottle at him, which hit their television. When the complainant then moved toward the appellant, he struck the complainant with his fist, hitting the complainant on the right side of her cheek. The appellant also told police that the complainant kicked him.

The Magistrate’s decision on the choking charge

19․In an ex tempore judgment delivered on 28 November 2023, the Magistrate did not accept the complainant’s evidence regarding the choking, finding that her version of events was vague and unreliable. In particular, the Magistrate referred to the complainant’s inability to recall parts of the night, including grabbing the appellant’s neck and face. The Magistrate also referred to the complainant changing her evidence between falling to the floor and being thrown to the floor. Taking into account each of these matters, the Magistrate was not satisfied beyond reasonable doubt that the appellant had choked, strangled or suffocate the complainant, and dismissed the second charge.

20․The Magistrate accepted the plea of guilty to the charge of assault causing actual bodily harm. The Magistrate found the offence was proven, relying on the appellant’s record of interview.

The proceedings on sentence

21․The sentence proceedings were heard on 6 December 2023.

22․The appellant’s legal representative tendered character references from a former employer, a friend, the appellant’s mother, the appellant’s social worker and the President of Ainslie Football Club.

23․The appellant’s legal representative submitted there was significant provocation which led to the offending, including discussions and arguments about the status of the relationship, the complainant’s assaulting of the appellant and her “agitated” state at the football club.

24․The appellant’s legal representative noted that the appellant had cooperated with police, spent a night in custody and engaged in counselling. The appellant’s legal representative noted that the appellant had disclosed the offending to his family and the Ainslie Football Club, which imposed a sanction on him. The appellant’s legal representative urged the Magistrate to impose a good behaviour order without conviction.

25․The prosecutor submitted that the offending was too serious for a non-conviction order. He noted that the offending had occurred in the complainant’s home, where she was entitled to feel safe, referring to s 34B of the Crimes (Sentencing) Act 2005 (ACT). The prosecutor further noted that the appellant had struck the complainant’s eye, a vulnerable part of her body, which had led to visible bruising. The prosecutor submitted that when considering the character references, the Magistrate should also have regard to the fact that family violence perpetrators often have good records, and that offending occurs behind closed doors. The prosecutor submitted that there was a high need for deterrence from family violence in the community.

The sentence decision

26․After hearing the parties’ oral submissions, the Magistrate delivered an ex tempore decision.

27․In that decision, his Honour stated that he had taken into account the appellant’s early plea of guilty, his character references, counselling the appellant had undertaken and the possible impact of a conviction on his employment. The Magistrate noted the appellant had no criminal history and determined that the appellant was unlikely to reoffend.

28․The Magistrate had regard to the need for general and specific deterrence, noting that the offending occurred within the family home. His Honour observed the vulnerability and sensitivity of that the area in which the complainant was struck (her eye). His Honour referred to authorities concerning the seriousness of family violence offending, and the circumstances in which a non-conviction order may be made under s 17 of the Crimes (Sentencing) Act. His Honour then continued:

Having regard to these matters and which is rightly expressed by the prosecution, this is a single act, a violent one to a complainant in a domestic relationship at home and in a vulnerable part of the person’s body in circumstances, notwithstanding the role played by the complainant in these matters, I understand that, having regard to the findings that I made on that day, but is there an expectation by the community where domestic violence, which is an offence of prevalence within the community, is it properly dealt with by way of a non-conviction order? Does it give rise to both community expectation that people out in the community will be protected in such circumstances? Would the making of a non-conviction order give effect to that?

I hear was had been put to me by [the appellant’s legal representative] that I look at a good behaviour order, but what would be the benefit of that? You are a low risk of reoffending in my view. The only reason I would put you on a good behaviour order is because I thought you might reoffend. The difficulty [is] that leaves little options for me, though I appreciate that’s my difficulty, but is it appropriate that I [not] record a conviction; that I dismiss the matter on that basis, having regard to your background and your personal circumstances albeit they are cogent and I accept the submission ultimately made.

Having regard to the fact that there is an employment issue for you going forward, which might call in question that continuance and what might happen, but notwithstanding, I think you are at low risk of reoffending, and notwithstanding that possibility, and while I accept cogent and compelling reasons advanced, I am not satisfied it is an appropriate outcome, taking up and accepting the observations of Windeyer J in the case of Kobiak v Liddy, a High Court decision, I am not satisfied it is expedient in all the circumstances. (emphasis added)

29․The Magistrate noted that the appellant was 32 years old and that he had no criminal history. His Honour described the offending as “not trivial”. As to the objective seriousness of the offending, his Honour stated that it “starts to move in relation to this matter, having regard to the aggravating circumstances, and while there’s some [leeway] at the lower end of the scale of objective seriousness, [the offence] is not at the low end”. His Honour also referred to the early plea of guilty, and indicated that the plea should attract a 25% discount “in any sentencing outcome that I should impose”.

30․The Magistrate then continued:

Taking all of those matters into the mix, I am satisfied the section 10 threshold has not been crossed… So being satisfied that that line has not been crossed on this occasion, I then look at what I am left with. I look at the alternatives available to me under section 17(4).

For the reasons that I have articulated, I accept the prosecution’s submissions in relation to that it is not addressing the level of harm and the circumstances of family violence in those matters that I have highlighted in the manner that it was done. On that basis, the application under s 17 and the exercise of my discretion is refused.

Having regard to those matters, though, as I have indicated to you I think that you are at low risk of reoffending, so at 34 you come before the court without any criminal history. A good behaviour order might form a view in someone’s mind that you are going to do it again or that the court thin[k]s you are going to do it again, I think you are a low risk having regard to what has been written about you and those who know you. On that basis I don’t intend [on] putting a good behaviour order in place.

31․The Magistrate then convicted the appellant and fined him $1,400.  

Jurisdiction

32․The appellant appealed against the Magistrate’s decision pursuant to Part 3.10 of the Magistrates Court Act 1930 (ACT). There was no dispute as to the principles to be applied on the appeal. The appellant acknowledged that he was required to demonstrate that the sentence was infected by either a patent, or latent error of the kind identified in House v The King (1936) 55 CLR 499. The appellant also properly acknowledged that even where specific error is demonstrated, the Court may decline to intervene if satisfied that the original sentence was appropriate in all of the circumstances.

Relevant legislation

33․Section 17 of the Crimes (Sentencing) Act provides as follows:

17 Non-conviction orders—general

(1)This section applies if an offender is found guilty of an offence.

(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b)a good behaviour order under section 13.

Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).

(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a)the offender’s character, antecedents, age, health and mental condition;

(b)the seriousness of the offence;

(c)any extenuating circumstances in which the offence was committed.

(4)The court may also consider anything else the court considers relevant.

Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).

(5)If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.

Note 1 For notice of a good behaviour order under s (2) (b), see s 103.

Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).

(6)Failure to comply with subsection (5) does not invalidate the non‑conviction order.

(7)If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years.

(8)This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).

Determination

Whether his Honour erred in his approach to s 17 of the Sentencing Act (Ground C)

34․It is convenient to commence with a consideration of Ground C, which was the focus of the appellant’s oral and written submissions on the appeal.

35․Ground C is primarily concerned with the following statement in the Magistrate’s reasons for sentence:

I hear what had been put to me by [the appellant’s legal representative] that I look at a good behaviour order, but what would be the benefit of that? You are a low risk of reoffending in my view. The only reason I would put you on a good behaviour order is because I thought you might reoffend. The difficulty [is] that leaves little options for me, though I appreciate that’s my difficulty, but is it appropriate that I [not] record a conviction; that I dismiss the matter on that basis, having regard to your background and your personal circumstances albeit they are cogent and I accept the submission ultimately made. (emphasis added)

36․The appellant contended that in this passage, his Honour held that a s 17(b) non-conviction with a good behaviour order should not be imposed on an offender who poses little risk of reoffending. The appellant submitted that this finding was in error, because good behaviour orders are not limited to offenders who are at risk of reoffending: Director of Public Prosecutions v Chen [2023] ACTSC 154 at [72] and R v Mauger [2012] NSWCCA 51 at [37]. The appellant contended that excluding good behaviour orders for offenders who pose little risk of reoffending would disadvantage offenders with better prospects of rehabilitation, which would be a perverse outcome.

37․The respondent did not dispute the proposition that a s 17 good behaviour order may be imposed on an offender who poses little risk of reoffending. Rather, the respondent submitted that, on a proper construction of the Magistrate’s reasons, his Honour did not hold that he was precluded from imposing a s 17 good behaviour order, but simply held that there was “no necessity or utility” for such an order in the circumstances of the case.

38․The heart of this ground of appeal therefore concerns the proper construction of the Magistrate’s reasons.

39․As the respondent submitted, in construing the Magistrate’s reasons, regard must be had to their ex tempore nature:

The giving of ex tempore reasons… enables cases to be determined quickly, and is particularly important in courts of high volume, such as the Magistrates Court. However, the task is not easy. It requires the decision maker to mentally synthesise a variety of considerations, whilst simultaneously expressing those considerations in oral form. Given these pressures, it is unsurprising that “[e]x tempore judgments not infrequently lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing”: Rotner v R [2011] NSWCCA 207 at [57]. The authorities which speak of the allowance that should be given to ex tempore reasons recognise and give weight to this reality: Buxton v R [2017] NSWCCA 169 at [53]; Currie v R [2013] NSWCCA 267 at [50]; Greenwood v Barlee [2018] ACTSC 46 at [4], citing Acuthan v Coates (1986) 6 NSWLR 472 at 479.

Agarwal v Coutts (No 2) [2024] ACTSC 92 at [37]. See also GW v R [2015] ACTCA 15; 306 FLR 104 [81]; R v Henderson [2009] ACTCA 20 [26].

40․I have given full allowance to the ex tempore nature of the Magistrate’s reasons. However, even affording this allowance, I have concluded that there is error in the Magistrate’s reasons.

41․The difficulty arises from the rhetorical question that was posed by the Magistrate, namely “what would be the benefit of [imposing a good behaviour order]?” The Magistrate’s apparent answer to this question was that the only benefit of imposing a good behaviour order could be in reducing any risk of reoffending. As the offender posed no risk of reoffending, it followed that a good behaviour order could be of no utility.

42․As a matter of law, this answer was erroneous. It is well established that good behaviour orders, even when standing alone and without a conviction, may achieve a measure of deterrence (both specific and general) as well as denunciation and punishment. As Harrison J (with whom Beazley JA and McCallum J, as her Honour then was) held in Mauger at [37]:

…[I]t is important … not … to dilute or downgrade the significance of the imposition of a bond. If the seriousness of the present offences and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent’s conduct upon an objective and reasonable member of the community.

See also R v CV [2013] ACTCA 22 at [59] and Chen at [72].

43․Accordingly, the Magistrate erred in law by failing to take into account that the imposition of a good behaviour order may achieve purposes of sentencing other than facilitating the rehabilitation of an offender who poses a risk of reoffending.

44․After holding that he would only impose a good behaviour order on the appellant if the appellant “might reoffend”, the Magistrate observed that he was left with “little options”. It is clear from this observation that, having rejected a good behaviour order on the (erroneous) basis that such an order would lack utility, his Honour concluded that the only sentencing options that remained were a fine or a s 17(a) dismissal. As the Magistrate rejected an available sentencing option by reason of a mistake of law, it follows that the Magistrate’s error was material to the sentence imposed. Ground C must be upheld. It is necessary to resentence the appellant.

Appeal Grounds A and B

45․As error has been demonstrated, appeal Grounds A and B may be briefly addressed.

46․Ground A alleged that the Magistrate erred by failing to find that the objective seriousness of the offending was not low level. In Ground B, the appellant contended that the Magistrate’s comment that “while there’s some [leeway] at the lower end of the scale of objective seriousness, [the offence] is not low end” indicated that the Magistrate was wrongly of the view that a s 17 disposition is only available where the objective seriousness of an offence is assessed as low end.

47․It was not strictly necessary for the Magistrate to make a finding as to objective seriousness: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]; The Queen v Miller [2019] ACTCA 25 at [18]–[25]. However, where such a finding is made, the sentence may be impugned if the finding that was made was not open to the Magistrate: Mulato v R [2006] NSWCCA 282 at [46]–[47]; KQE v Director of Public Prosecutions [2024] ACTCA 7 at [33].

48․The appellant has not demonstrated that the Magistrate erred in rejecting the appellant’s contention that the offending was of low objective seriousness. As outlined below, whilst there was a degree of provocation, the appellant’s conduct represented a significant escalation of violence. The appellant struck the victim in the face, causing substantial bruising to her eye. The offending occurred in the context of a domestic relationship, and in the victim’s home. In these circumstances, it was well open to the Magistrate to conclude that the offending should not be assessed as low level objective seriousness.

49․As to ground B, the Magistrate did not hold that a s 17 disposition was only available where offending is of low level objective seriousness. In observing that “while there’s some [leeway] at the lower end of the scale of objective seriousness, [the offence] is not low end”, the Magistrate (i) recognised that the “low end” of the scale of objective seriousness is broad in scope, and (ii) found that notwithstanding that breadth of scope, the offending should not be characterised as “low end”. The Magistrate did not err in the manner alleged in Ground B.

50․Accordingly, appeal Grounds A and B must be dismissed.

Resentence

51․In oral submissions, the appellant’s counsel confirmed that the real issue on resentence concerns whether a conviction should be ordered. There was otherwise no challenge to the fine that was imposed.

52․The principles concerning the circumstances in which non-conviction orders may be made are well established. The discretion conferred by s 17 is wide. It is not necessary for an offender to demonstrate that the offending was “trivial” to enliven the provision: R v FI [2017] ACTSC 190 at [27]. Whilst the making of a non-conviction order is an exceptional outcome, it is not necessary for there to be exceptional circumstances before such an order is made: Vuolo v Fall [2023] ACTCA 33 at [37].

53․Nonetheless, it must also be born in mind that the recording of a conviction is “a formal and solemn act” which marks the disapproval of the offender’s wrongdoing by the Court and by society: R v AB [2022] NSWCCA 3 at [39]. Whilst a good behaviour order may achieve a measure of punishment, deterrence, and denunciation, it remains the case that the ability of a sentence to achieve those purposes will be eroded to some extent if a conviction is not ordered: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 at [56].

54․Bearing in mind the above principles, I do not consider that a non-conviction order is appropriate in the present case. The appellant struck the victim in the face with a closed fist, occasioning extensive bruising and swelling to the victim’s eye (a vulnerable, sensitive area of the victim’s head). There is a high need for denunciation, punishment, deterrence and recognition of the harm caused.

55․The offending occurred in a family violence context, in the victim’s home: s 34B of the Crimes (Sentencing) Act. The community, through Parliament, has made clear that family violence is unacceptable in any form, and that family violence is to be prevented, inter alia, by promoting the accountability of perpetrators of family violence: Preamble to the Family Violence Act2016 (ACT).

56․Of course, this is not to say that a s 17 non-conviction order will never be appropriate in offending relating to family violence. There is no class of offending which is excluded from the purview of s 17. It is axiomatic that individualised justice requires that consideration be given to the particular offending and to the particular offender: R v Elson [2020] ACTSC 264 at [80]–[81] and Chen at [66]–[67]. However, when considering the weight to be given to the purposes of punishment in s 7 of the Crimes (Sentencing) Act, it is necessary for the Court to take into account the seriousness with which the legislature views this form of offending.

57․I have not overlooked the fact that there was a degree of provocation, in that it was the victim who first grabbed at the appellant’s body and face during their drive home. I have also taken into account the fact that the offence was spontaneous, and isolated.  However, the appellant’s response constituted a significant escalation of that violence. It is not uncommon for family violence offences to be committed in circumstances of conflict. There is a real need to deter and denounce the escalation of violence that occurred in the present case.

58․I have also carefully considered the possible effect of a conviction on the appellant’s employment. The appellant gave evidence on resentence that he is currently employed as a vetting analyst for Staff Check, which conducts security clearance vetting on behalf of the Department of Defence. The appellant is required to hold a security clearance himself for this role. The appellant explained that he would be required to inform AGSVA Defence of any conviction. This would result in a ‘review for cause’ regarding his suitability to hold a security clearance. The appellant said that a conviction would “definitely affect [his] suitability for holding that level of security clearance”, and if found unsuitable, he would lose his employment. I accept the appellant’s evidence that the imposition of a conviction may well result in the loss of his present employment.

59․Some care needs to be taken when considering the effect of a conviction on the appellant’s employment. It is well-established that provisions such as s 17 should not be employed so as to circumvent the operation of legislative provisions designed to protect the community, such as provisions which preclude persons with convictions for offences from holding positions of authority in a corporation, or working with vulnerable persons: Mauger at [21], citing Fing v R (4 October 1994, unreported); R v Stephenson [2010] NSWSC 779 at [66]. Similar considerations arguably operate in respect of the appellant, given the nature of his employment. However, in circumstances where this issue was not raised by the prosecution, I have, favourably to the appellant, taken into account, as extra curial punishment, the likelihood that the appellant will lose his job if a conviction is recorded.

60․I have taken into account the appellant’s prior good character, remorse, good prospects of rehabilitation, his early plea of guilty to the present offence and the fact that the appellant spent a night in custody and 18 months on bail prior to sentence.

61․Notwithstanding each of these matters, I consider that the need for accountability, denunciation and recognition of the harm caused would not be met by the imposition of a non-conviction order.

62․Noting that the appellant did not otherwise challenge the imposition of the fine, it follows that no lesser sentence than that imposed by the Magistrate is appropriate in all of the circumstances. The appeal must be dismissed.

Orders

63․For the above reasons, the orders of the Court are as follows:

(1)The appeal is dismissed.

I certify that the preceding sixty three [63] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 26 August 2024