Daley v The King - [2023] SASCA 29

Supreme Court of South Australia
(Court of Appeal: Criminal)
DALEY v THE KING
[2023] SASCA 29
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Nicholson)
21 March 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
The appellant applied for permission to appeal against a sentence of 10 months’ imprisonment which was suspended upon entry into a two-year bond to be of good behaviour. That sentence was imposed following a trial before a jury in which the appellant was acquitted of rape but convicted on a charge of assault causing harm for which the maximum penalty was imprisonment for three years.
The application for permission raised three grounds of appeal. The first was that the sentence was manifestly excessive, the second was that the sentencing judge erred in recording a conviction and finally, the sentencing judge erred in describing the appellant’s behaviour towards the victim as “extremely violent”.
The Court held (granting permission to appeal but dismissing the appeal):
1. The sentence in this case might be thought severe given the appellant’s very favourable personal circumstances but it cannot be described as manifestly excessive, still less unjust.
2. The power to refrain from recording a conviction is to be exercised sparingly
3. The seriousness of the offending, the need for deterrence and the public interest in recording a conviction outweighed the appellant’s favourable personal circumstances and the likely hardship associated with recording a conviction.
4. The sentencing judge did not err in describing the appellant’s behaviour towards the victim as “extremely violent”.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Sentencing Act 2017 (SA) s 97, referred to.
Bugmy v The Queen (2013) 249 CLR 571; Goldsworthy v Police [2016] SASC 85; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Lee v The State of Western Australia [2022] WASCA 137; R v Hoffman [2017] SASCFC 15; R v Lutze (2014) 121 SASR 144; R v Stubberfield (2010) 106 SASR 91; R v Taylor; R v Teekens [2022] SASCA 79; R v Yousef (2005) 155 A Crim R 134; Sharrad v Police [2015] SASC 26; Sims v Police (2000) 30 MVR 524; Tazebe v Police [2013] SASC 194, considered.

DALEY v THE KING
[2023] SASCA 29
Court of Appeal – Criminal: Livesey P and Nicholson AJA
Introduction

The appellant applied for permission to appeal against a sentence of 10 months’ imprisonment which was suspended upon entry into a two-year bond to be of good behaviour. That sentence was imposed following a trial before a jury in which the appellant was acquitted of rape but convicted on a charge of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty was imprisonment for three years.
The application for permission raises three grounds of appeal. The first is that the sentence was manifestly excessive, the second is that the sentencing judge erred in recording a conviction and finally, the sentencing judge erred in describing the appellant’s behaviour towards the victim as “extremely violent”.
Following argument, the Court announced that permission to appeal would be granted but the appeal was dismissed. These are the reasons for those orders.
The circumstances of the offending
In the early hours of Sunday, 20 May 2018, the appellant and the victim had been drinking at different locations on Pirie Street in the City of Adelaide. They were both intoxicated. The victim was looking for a taxi. She had two small bruises on her neck which were described in evidence at the trial as “hickeys”. It may be that the appellant saw these and then approached the victim, asking her about “choking”. In effect, he asked whether she had a sexual preference for choking. The victim responded sarcastically with words to the effect that she did but “not for you”.
They walked past a commercial building on Pirie Street. The appellant placed one arm around the victim and then they kissed briefly. The victim was obviously intoxicated and unable to remain standing. The appellant stopped her from falling. The appellant groped the victim. Another person approached them and the victim walked away. These and other movements were captured on CCTV footage.
Once the victim was around 10 metres from the appellant, he again approached her from behind, grabbing her around her neck with his hand. His hand remained around the victim’s neck as she was manhandled into a breezeway along the side of the commercial building. He appears to have placed a second hand arounder her neck. The appellant then forced the victim into an area which was not depicted on CCTV. It was in that area where the activity which formed the basis of the rape allegation occurred. The victim and then the appellant are then shown to leave the breezeway separately.
Photographs taken within a day the offending depict two large areas of bruising on either side of the base of the victim’s neck, distinct from the two small bruises which were already present. There was no challenge to the proposition that the larger bruising was caused by the appellant’s hands. It was not suggested, nor was it an element of the charged offending, that he intended to cause this harm.
It is obvious from the CCTV footage that the young female victim was intoxicated. The appellant was a larger, apparently stronger male. He approached the victim from behind and grabbed her around her throat. The appellant’s purpose in manhandling the victim into the breezeway and ultimately into a secluded area was, apparently, to engage in some form of intimate contact with the victim. It is fair to describe the appellant’s behaviour as involving both predatory and violent conduct, directed towards an obviously vulnerable young woman.
According to the victim impact statement which was before the sentencing judge, the victim had previously suffered mental illness and was distressed that, following a lifetime overcoming mental illness, she was required to re-attend therapy with “another hill to climb”. The victim remained emotionally scarred and anxious. She had moved away from the city. The appellant caused the victim a “wave of negativity over her life”. He “debased her sense of safety”.
The circumstances of the offender
The appellant was 31 years at the time of the offending and 35 years at the time of sentence. He had enjoyed a good upbringing, completing year 12 and studying Economics and Corporate Finance at university before obtaining a Diploma in Technical Analysis.
The appellant had a good work history. In the seven years before sentence, he had been employed at by a substantial winemaking entity as a commercial manager with responsibility for 25 employees. In that employment, the appellant was required to travel interstate and overseas to Sydney and Paris. A very favourable reference from his employer confirmed that the appellant was responsible for the management of a $30 million annual grape purchasing budget for the premium supply regions. The appellant was regarded as a young man of great aspirations and commendable character.
The appellant enjoyed a good reputation which was supported by other character references, including from the appellant’s fiancé. He was regarded as a man of great integrity albeit he had experienced a lapse in judgment which was never to be repeated.
The sentencing judge was told, without challenge, that the appellant’s employer had a policy that employment would be terminated in the event a conviction was recorded. The advice given to the sentencing judge about company policy did not, however, extend to what might occur in the event of a finding of guilt, albeit without a conviction being recorded.
In any event, it was submitted that a conviction would restrict the appellant’s capacity to travel overseas. This, and the appellant’s likely loss of employment, framed the submission made to the sentencing judge that no conviction should be recorded.
After the offending, the appellant participated in counselling for violence and alcohol use. In the four years between offending and sentence the appellant had become engaged, bought a house with his fiancé in Tanunda and they had a son, aged around eight months at the time of sentence. The sentencing judge was told that the appellant was the sole breadwinner, at least until his fiancé returned to the workforce. It was submitted that if the appellant lost his job, he and his fiancé had no means to pay their mortgage and they could “lose everything”.
Whilst the appellant was not a first offender, he had no relevant convictions for violence. He had convictions for driving offences and, in 2016, he was sentenced for contravening an intervention order. This was associated with the appellant spending time with his former partner, with her consent, notwithstanding the existence of “an active intervention order”. The appellant’s offending was dealt with without a conviction being recorded. He was fined $200.
The approach of the sentencing judge
The sentencing judge described the appellant’s offending in the following way:
You grabbed her for long enough, and hard enough, to leave bruises on both sides of her neck. In that regard, I have taken into account the photographs that were taken of the victim when she attended the hospital later that night. You behaved in an extremely violent way towards an intoxicated, vulnerable woman, who was, for all intents and purposes, a stranger to you. She was alone when you grabbed her in the way I have described, and forced her, as I say, into the darkness.
Later, the sentencing judge described the appellant’s offending as “very serious”:
In my view your offending was very serious. You grabbed a vulnerable intoxicated woman around the throat for an extended period of time causing bruising to her neck. Your offending was an outrageous display of violence. Your victim was a stranger to you and your actions were completely unprovoked. The CCTV footage of your attack paints a disturbing picture.
The sentencing judge placed little weight on the submission that the appellant was contrite and remorseful where he had pleaded not guilty, as was his right.
The sentencing judge regarded both general and personal deterrence as important considerations. Whilst he acknowledged the discretion to impose no conviction and that the authorities had recognised that no conviction may be imposed even where serious violence and injury are involved, he reasoned that a conviction was in the circumstances of this case appropriate:
Whether to record a conviction involves a consideration of the public interest in a right to know about a person’s offending, the individual’s personal circumstances, and the effect the recording of a conviction will have upon that individual. The recording of a conviction serves many purposes. It is the formal record of the adjudication of the offender’s guilt and is a public declaration of the person engaged in the charged criminal conduct. It forms part of the community’s denunciation and censure of that conduct.
The sentencing judge explained that the prospect of conviction forms part of the deterrent effect of a sentence. His Honour explained that prospective employers and government departments have a legitimate interest in knowing the truth about the character of those who deal with them and, where serious offending has been committed, there is a greater need for the public to know about it. The sentencing judge regarded the entry of a conviction as the “only appropriate way” to deal with the matter, combined with the imposition of a term of imprisonment. His Honour was mindful of the positive aspects of the appellant’s personal circumstances, including the lack of prior convictions for assault together with the rehabilitation since 2018.
The sentencing judge fixed a sentence of 10 months’ imprisonment after balancing the need to give effect to general and personal deterrence against the appellant’s good prospects for rehabilitation. The sentencing judge found that there was “good reason” to suspend the sentence and he directed that this be subject to entry into a bond to be of good behaviour for two years, with 12 months subject to supervision and the lawful directions of a community corrections officer.
The approach of the appeal court
As might be expected, there was no issue about the approach required from this Court. The question was whether any of the grounds of appeal is reasonably arguable: did the sentencing judge make any of the errors alleged when exercising his discretion?
When determining whether the sentencing judge made any error, the appeal court is mindful that it is reviewing the exercise of a broad discretion, in accord with the ruling of the High Court in House v The King.[1] It is necessary for the appellant to identify a specific error, such as a material misstatement of the facts or law, or an error in the outcome. When considering the outcome, it is not sufficient that the appeal court may have imposed a different sentence to that which was imposed by the sentencing court,[2] even if the sentence is markedly different from that imposed in other cases.[3] Rather, it must be demonstrated that the sentence is so unreasonably low or unreasonably high that it is both unjust and outside the range of sentences that might reasonably have been imposed having regard to the circumstances of the offending and the offender.
[1]     House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
[2]     Bugmy v The Queen (2013) 249 CLR 571, 587-588 [22]-[24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[3]     Hili v The Queen (2010) 242 CLR 520, 538-539 [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Whilst the approach taken in other cases is relevant, the decision in any one or a number of other cases will not determine the outcome of the case before the appeal court. It is always necessary to pay careful regard to the circumstances of each case because these will often demonstrate that a direct comparison is of limited utility.[4]
[4] Bubner v The Queen [2022] SASCA 27, [36] (The Court).
Accepting that questions of weight will rarely demonstrate an error in the exercise of discretion, the appellant nonetheless pointed to instances where the sentencing judge appeared to give what was described as excessive weight, or alternatively inadequate weight, to particular issues as a means of illustrating the submission that the sentence imposed was manifestly excessive.[5] In addition, on the question whether a conviction should be recorded, the appellant submitted that too much weight had been given to the objective seriousness of the offending and inadequate weight had been given to the appellant’s personal circumstances.
[5] See for example, R v Lutze (2014) 121 SASR 144, 154, [47] (Vanstone and Parker JJ); Lee v The State of Western Australia [2022] WASCA 137, [72]-[76] (The Court).
The appellant’s contentions regarding specific errors
It is convenient to first address the appellant’s third and second appeal grounds, which sought to identify specific errors made by the sentencing judge.
The third appeal ground was proffered by senior counsel for the appellant during the hearing of the appeal, without objection from counsel for the respondent, who had effectively anticipated the issue in her written submissions. The issue is whether the sentencing judge both misapprehended and misdescribed the appellant’s offending as “extremely violent” rather than merely violent. Later in his remarks the sentencing judge described the offending as “an outrageous display of violence”. No issue was taken with this latter description.
Whilst the issue is not beyond argument, no material error of fact was made in describing the offending as “seriously violent”. The CCTV footage shows that the appellant’s approached the victim from behind, grabbing her violently around the neck and throat. The male appellant forced the smaller, unsteady female victim into the breezeway, over a considerable distance. The photographs depicted large areas of pronounced bruising around the base of the neck and throat. Regardless whether this was intended, this bruising was the objective consequence of the offending and it was relevant to take it into account. There was no material error involved in describing this offending as “seriously violent”.
The second appeal ground complains that the sentencing judge failed to balance all relevant factors and address the appellant’s personal circumstances and, in addition, that he ought not to have recorded a conviction.
To the extent that the first part of this contention was pressed, it must be rejected. The sentencing judge addressed the appellant’s personal circumstances in considerable detail, noting on more than one occasion that the entry of a conviction would result in the loss of the appellant’s employment. When addressing the question whether to record a conviction the sentencing judge referred explicitly to “the individual’s personal circumstances, and the effect the recording of a conviction will have upon that individual”.
It cannot be said that the sentencing judge failed to balance the relevant factors or overlooked the appellant’s personal circumstances when exercising the discretion about whether to record a conviction.
It is convenient to address the complaint about the recording of a conviction as part of the first appeal ground, which was directed to manifest excess.
The appellant’s contentions regarding manifest excess
The approach of an appeal court to a contention of manifest excess is not in doubt. The High Court in Hili v The Queen explained when a conclusion of manifest excess or inadequacy warrants intervention:[6]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.
(citations omitted)
[6] Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It was submitted that the sentencing judge placed too much weight on the seriousness of the offence,[7] and insufficient weight was given to the applicant’s personal circumstances.[8] It was also submitted to be reasonably arguable that the applicant was entitled to a merciful approach given his lack of antecedents, the impact that a conviction would have on his employment and in circumstances where convictions have not been recorded for more serious offences.[9]
[7]     Tazebe v Police [2013] SASC 194 (Tazebe) (Nicholson J).
[8]     Sharrad v Police [2015] SASC 26 (Sharrad) (Sulan J).
[9]     R v Stubberfield (2010) 106 SASR 91 (Stubberfield), [45]-[50] (The Court).
It is convenient to commence with the issue concerning the recording of a conviction. By s 97 of the Sentencing Act 2017 (SA) a sentencing court is granted the power, if good reason exists, to discharge a defendant with or without recording a conviction, provided the defendant enters a good behaviour bond.[10] The power to refrain from recording a conviction is an exception to the rule that a conviction will ordinarily be recorded upon a finding of guilt.[11] The power to refrain from recording a conviction is to be exercised sparingly.[12]
[10] Provision is also made for discharge without recording a conviction or the imposition of a penalty without recording a conviction under ss 23 and 24 of the Sentencing Act 2017 (SA). Those sections do not require entry into a bond.
[11] Goldsworthy v Police [2016] SASC 85, [27] (Stanley J), citing Sims v Police (2000) 30 MVR 524, [7] (Bleby J).
[12] R v Yousef (2005) 155 A Crim R 134, [62] (Sulan and Layton JJ, with whom White J agreed).

In R v Taylor; R v Teekens the Court of Criminal Appeal set out the considerations that influence whether to record a conviction:[13]
Whether to record a conviction involves a consideration of the public interest in the right to know about a person’s offending, the individual’s personal circumstances and the effect the recording of a conviction will have upon that individual.
The recording of a conviction serves many purposes. It is the formal record of the adjudication of the offender’s guilt and is a public declaration that the person engaged in the charged criminal conduct; it forms part of the community’s denunciation and censure of the conduct. Also, the prospect that a conviction will be recorded forms part of the deterrent effect of a sentence. In R vYousef,[14] Sulan and Layton JJ observed:
… A conviction does not merely record a finding that the person committed the crime charged: it condemns him for that crime; it is a communicative act, communicating censure to the convicted person. The recording of a conviction acts as a general deterrent to those who may be inclined to offend in a similar way.
There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.
(citations omitted)
[13] R v Taylor; R v Teekens [2022] SASCA 79, [20]-[21] (The Court).
[14] R v Yousef (2005) 155 A Crim R 134, [60]-[61] (Sulan and Layton JJ, with whom White J agreed).
As the sentencing judge recognised, the community has a legitimate interest in ensuring that there is a public record of serious criminal wrongdoing:[15]
Prospective employers, companies, and government departments may have a legitimate interest in knowing the truth about the character of persons who deal with them.[16] Where a serious offence has been committed, there is a greater need for the public to know of the offending.[17]
[15] R v Taylor; R v Teekens [2022] SASCA 79, [22] (The Court).
[16] R v McGaffin (2010) 206 A Crim R 188 (Gray J).
[17] Police v Sherratt [2015] SASC 43 at [19] (Sulan J).
Even if a conviction is not recorded there may nonetheless be adverse consequences, as was explained by Nicholson J in R v Hoffman:[18]
It is apparent that even where a conviction is not recorded for an offender, the offender history report still will record the offence, that it was committed and the penalty imposed. Further, modern employment practices when investigating the background of a potential employee are such that a more expansive disclosure, over and above whether the applicant has any “convictions”, is often requested. As such, the typical submission that the recording of a conviction is likely to have negative consequences for employment prospects is likely, in many cases, to be given less weight than previously has been the case.
[18] R v Hoffman [2017] SASCFC 15, [29] (Nicholson J, with whom Kourakis CJ and Parker J agreed).
Further, as the respondent submitted, the three cases relied on by the appellant were each distinguishable:
1.In this case the applicant was 31 years at the time of the offending and 35 at the time of sentence. By contrast, in Sharrad and Tazebe the appellants were each only 20 years at the time of their offending.
2.The applicant came before the Court with some criminal history, albeit minor. By contrast, in each of Sharrad, Tazebe and Stubberfield the appellants had no criminal record at all.[19]
3.In the cases of Tazebe and Stubberfield each appellant was sentenced on a factual basis that demonstrated limited moral culpability; in Stubberfield the issue was excessive self-defence, whereas in Tazebe the appellant had been “sorely provoked”.[20]
4.The appellants in each of Sharrad and Stubberfield had pleaded guilty, and were found to have expressed genuine contrition and remorse.[21]
[19] Tazebe v Police [2013] SASC 194 [4] (Nicholson J); Sharrad v Police [2015] SASC 26 [9] (Sulan J); R v Stubberfield (2010) 106 SASR 91, 99 [29] (The Court).
[20] R v Stubberfield (2010) 106 SASR 91, 94 [3] (The Court); Tazebe v Police [2013] SASC 194 [20] (Nicholson J).
[21] Sharrad v Police [2015] SASC 26 [10] (Sulan J); R v Stubberfield (2010) 106 SASR 91, 99-100 [29] (The Court).
More fundamentally, it cannot be said in this case that the sentencing judge erred when determining that the seriousness of the offending, the need for deterrence and the public interest in recording a conviction outweighed the appellant’s favourable personal circumstances and the likely hardship associated with recording a conviction.
Recording a conviction in this case did not demonstrate any failure by the sentencing judge to properly exercise the discretion reposed in him.
As for the imposition of a sentence of imprisonment and the length of the sentence, the appellant called in aid s 10(2) of the Sentencing Act 2017 (SA), which effectively mandates imprisonment as a sentence of last resort:
Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—
(a)the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or
(b)it is required for the purpose of protecting the safety of the community (whether as individuals or in general).
Whilst it may be doubted whether personal deterrence was an important consideration in this case given the appellant’s rehabilitative conduct since his offending (and notwithstanding his plea of not guilty), general deterrence was a very important consideration. Young people, including vulnerable young women, should be free to go about their lawful activities in the city at night without any fear of being accosted, manhandled and assaulted from behind by strangers.
Though the sentence in this case might be thought severe given the appellant’s very favourable personal circumstances, it cannot be described as manifestly excessive, still less unjust.
Conclusion
As has been seen, the appellant’s three proposed appeal grounds are each reasonably arguable.
Accordingly, the appellant was granted permission to appeal but the appeal was dismissed on 14 March 2023.