Daniel Donoso v David Koster
[2011] ACTSC 192
•24 November 2011
DANIEL DONOSO v DAVID KOSTER
[2011] ACTSC 192 (24 November 2011)
Crimes (Sentencing) Act 2005 (ACT), s 33
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 56 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 24 November 2011
IN THE SUPREME COURT OF THE )
) No. SCA 56 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DANIEL DONOSO
Appellant
AND: DAVID KOSTER
Respondent
ORDER
Judge: Burns J
Date: 24 November 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal will be allowed.
The conviction and penalty imposed by the learned Magistrate will be set aside.
In lieu, without recording a conviction, there will be a good behaviour order for a period of 12 months, which will be confined to the core conditions only.
On 3 May 2011 Magistrate Lalor in the Magistrates Court of this Territory convicted the appellant on his plea of guilty to one charge of common assault. That offence occurred on 24 December 2010. As I understand it, the appellant originally pleaded not guilty with respect to the charge, but changed his plea to one of guilty based upon an amended statement of facts on the hearing date on 3 May 2011.
Brief submissions were made to his Honour with respect to sentencing. I say that the submissions were brief because, in large, his Honour precluded the provision of more fulsome submissions to him. Mr Jackson, who appeared on behalf of the appellant in the Magistrates Court, sought an adjournment on 3 May 2011 in order to put appropriate material before the learned Magistrate in the sentence proceedings with respect to the charge. For reasons which are not abundantly clear to me, the Magistrate appears to have dealt with that application in a very cursory manner and refused it. In my opinion, that application for an adjournment in order to put appropriate material before the court in the sentence proceedings should have been granted.
An application has been made in the current proceedings by the appellant to put fresh evidence before this Court. That material is, effectively, the material that they would have sought to put before the learned Magistrate, had he allowed the adjournment in order to obtain it. The prosecution, rightly in my view, has accepted that that material should be allowed to be admitted into evidence and I have ordered that it be admitted.
As fresh evidence has been adduced in these proceedings, I am obliged to exercise my own sentencing discretion with respect to the matter which is now before me. It is not necessary for me to determine some error in sentencing with respect to the proceedings in the Magistrates Court.
The prosecution submits that, as this is a family violence offence, it has a certain degree of seriousness, which means that a conviction should be recorded. I accept that there are circumstances and principles relating to family violence offences which mean that they must be taken particularly seriously. However, one must always look at the objective seriousness of the offence and also at the subjective circumstances of the offender.
In terms of the objective seriousness of the offence, the assault alleged by the prosecution was a forcible pulling of sheets from on top of the complainant when she was in bed, which caught on the complainant’s necklace, pulling the necklace across the neck, causing pain and a red welt on her lower neck. Insofar as it is alleged that there is an injury occasioned as a consequence of the appellant’s actions, I note that he is not charged with any offence involving the infliction of injury. However, I do not necessarily understand the allegation that a welt was involved to involve an allegation of injury; simply that a mark was left on the skin of the complainant. In my view, the current offence objectively comes very close to the bottom of the range of seriousness of offences of this nature.
I note that the appellant is otherwise a man of good character. He has no previous convictions recorded against him. He is also spoken highly of by those who have now provided testimonials to this Court. In addition to which, he is employed in an area in which the recording of a conviction may have particular consequences.
He is employed by Herron Property Maintenance and the director of that organisation has provided a letter to the court stating that most of his business is with government clients and the recording of a conviction means that the appellant can only undertake restricted duties. The appellant’s employer states that it would be difficult to sustain this position and that if the appellant remains convicted his employer will have no choice but to terminate his employment.
I note that one of the matters I am obliged to take into account under s 33 of the Crimes (Sentencing) Act 2005 (ACT) is whether the recording of a conviction would be likely to cause particular hardship to the offender. I accept that particular hardship is likely to accrue to the current appellant if a conviction is to remain with respect to this charge.
Bearing in mind the fact that the appellant has no previous convictions and the fact that the charge against him, in my view, comes within the very bottom range of offences of this type, and bearing in mind the particular hardship which is likely to accrue to him if a conviction is to be recorded in respect to this matter, I propose to deal with the matter by way of a non-conviction order.
The appeal will be allowed. The conviction and penalty imposed by the learned Magistrate will be set aside. In lieu, without recording a conviction, there will be a good behaviour order for a period of 12 months, which will be confined to the core conditions only.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 7 December 2011
Counsel for the appellant: Mr T Crispin
Solicitor for the appellant: S & T Lawyers
Counsel for the respondent: Ms A Jubb
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 24 November 2011
Date of judgment: 24 November 2011
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