Dowling v Director of Public Prosecutions (SA) - [2013] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DOWLING v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2013] SASC 170
Judgment of The Honourable Justice Kelly
8 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
Appeal against sentence imposed in the Magistrates Court – Appellant pleaded guilty to one count of assault and one count of damaging property – appellant, aged 52 had previously been in a relationship with the victim – appellant had approached victim with a knife and threatened to harm him – after the victim ran away, the appellant slashed one of his tyres – Chief Magistrate recorded a conviction and imposed single sentence of two months of imprisonment for both offences – the sentence was reduced from three months on account of the appellant’s guilty plea – the Magistrate suspended the sentence upon the appellant agreeing to enter into a good behaviour bond for 12 months and to be under the supervision of a probation officer for one year.
Whether the Magistrate erred in finding that she was unable to deal with the appellant without conviction – whether the sentence imposed was manifestly excessive.
Held: Extension of time for filing the appeal granted – the offending was very serious – the Magistrate did not err in refusing to exercise the powers available to the court under s 16 or s 39 of the Sentencing Act – the sentence imposed is not manifestly excessive – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 85(2); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39, referred to.
Wittwer v Police [2004] SASC 226, considered.

DOWLING v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2013] SASC 170
Magistrates Appeal: Criminal
KELLY J.
Introduction

The appellant Deborah Joyce Dowling appeals against a sentence imposed in the Magistrates Court on 5 December 2012.
The appellant pleaded guilty to one count of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and one count of damaging property contrary to s 85(2) of the Act. The Chief Magistrate recorded a conviction and imposed a single sentence of two months imprisonment for both offences reduced from three months on account of the appellant’s guilty plea. Her Honour suspended the sentence upon the appellant agreeing to enter into a bond to be of good behaviour for a period of 12 months. One further condition requiring the appellant to be under the supervision of a probation officer for one year and to obey that officer’s lawful directions including any attendance as directed at counselling was also imposed.
Extension of time
The appellant’s notice of appeal was not filed until 11 September 2013, well outside the prescribed time limit. Accordingly the appellant also seeks an order granting an extension of time for the filing of the notice of appeal to 11 September 2013. The appellant’s reasons for the lengthy delay were that she could not afford legal representation and Legal Aid declined to fund any appeal. In the circumstances I consider that a satisfactory explanation has been provided for the delay and I shall extend the time for the filing of the appeal until 11 September 2013.
Grounds of appeal
The appellant’s complaint is that the Magistrate erred in finding that she was unable to deal with the appellant without recording a conviction. It was said that the Magistrate’s failure to have sufficient regard to the personal circumstances of the appellant and to the provisions of s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) led to the imposition of a sentence which is manifestly excessive.
Background
The appellant was originally charged with three offences including threatening life contrary to s 19(1) of the Act. The facts giving rise to the charges are set out fully in the Magistrate’s reasons.
The appellant, who was then aged 52, was in a relationship with the victim, Agazio Tedesco. She had met Mr Tedesco in about July 2011 when she was working as a site administrator in a mine. The relationship developed over a short period of time. The appellant became besotted with the victim to the point that, at the end of 2011, she terminated her employment at the mine where she was working and returned to Adelaide specifically to be with the victim.
Shortly after she came back to Adelaide the relationship deteriorated and effectively came to an end in January 2012, although from time to time it appears that the appellant and the victim continued to see each other, including having sexual contact. This ongoing contact between January and June of 2012 continued up until the week of the offences which the appellant committed on 18 June 2012. The Magistrate accepted that there had been sexual contact between the appellant and the victim as recently as 13 June when he stayed overnight with her.
The discovery by the appellant that the victim spent time with another woman over the weekend of 16 and 17 June appears to have been the trigger for the appellant’s actions on 18 June 2012.
On 18 June the appellant sent a number of text messages to the victim including messages “Agazio, I am going to kill you. If I don’t actually kill you, you are going to wish you were dead”. A later message said “If I see you I’ll run a knife through you. In fact I’m coming for you”.
On that date the victim was heading from work in a street near the Wheatsheaf Hotel. The appellant was waiting on the other side of the road where the victim’s vehicle was parked. She had a knife in her possession and as the victim approached, the appellant crossed the road and moved towards him. Upon seeing her, the victim ran away into the Wheatsheaf Hotel. The appellant then went to his vehicle and slashed one of the tyres with a knife. The appellant later admitted that she had wanted to scare the victim but denied ever intending to cause him any physical harm.
It was not in dispute that the appellant was a woman of previous good character. She entered her plea immediately after an agreement was reached between the prosecution and the defence that the first count of threaten life would not proceed.
During sentencing submissions a psychologist’s report of Monica Ciccocioppo dated 3 November 2012 was tendered on behalf of the appellant. That report was helpful as it explained in some detail the background and history of the appellant leading up to the events on 18 June 2012. As the report demonstrates, the appellant is a vulnerable individual with a history of unsuccessful relationships. She formed a complete emotional attachment to the victim of the offending and when it became apparent to her that she had been rejected by him she committed the offences on 18 June 2012. The appellant told the psychologist that she had decided to confront the victim on 18 June and “have it out with him and make him understand he could not treat her like she was a nothing”.
In submissions on appeal the appellant, who appeared unrepresented, complained that the Magistrate failed to take into account a number of relevant considerations which included failures to give adequate weight to the psychologist’s report, to give any or any sufficient regard to the appellant’s prospects for future employment and the impact that the recording of a conviction and a sentence of imprisonment would have in this regard, to have proper regard to all of the circumstances which led to the offending on 18 June 2012, or to the appellant’s previously good character, to the plea of guilty and the unlikelihood that the appellant would reoffend. Finally, the appellant complained that the Magistrate did not give sufficient regard to whether the provisions of s 16 of the Sentencing Act should be applied.
The Magistrate’s reasons
The Magistrate’s reasons were comprehensive. They made reference to the personal circumstances of the appellant and a specific reference was made to the report of Ms Ciccocioppo. The report of Ms Ciccocioppo itself was a comprehensive document which set out all of the relevant circumstances leading up to the offending including the history, progression and breakdown of the relationship between the appellant and the victim from the appellant’s perspective. It also included many aspects of the appellant’s prior relevant history.
The appellant made specific submissions concerning the effect of a conviction upon her employment situation. The Magistrate made explicit reference to that submission before concluding that a conviction was appropriate and that the only appropriate penalty in the circumstances was a sentence of imprisonment. The Magistrate then concluded:
I balance those matters, together with the seriousness of the offending and the other considerations that I need to take into account and in those circumstances I impose convictions and one sentence, a sentence of imprisonment which would have been three months but I am going to reduce it to two months for your pleas of guilty.
I turn then to whether or not that sentence should be suspended. On the one hand the offending is serious, you had indicated what you were going to do, you then did it. To that extent you got the knife, you carried out damage with the knife. For all of those reasons, there was a degree of planning and pre-meditation. On the other hand, you have no prior convictions. You have lived an otherwise law-abiding life. You have work and whilst it has been put to me that a conviction will affect that work, I note that you have done all sorts of work and I am sure that there would be other types of work available to you and in any event I have some concern that anyone who would take the law into their hands in this way should not be in the sort of industry that has been described to me as your current employment.
I balance all of those things and I consider that having balanced them I am inclined to suspend the sentence of imprisonment and I do so upon you entering into a $500 one year good behaviour bond requiring you to be under supervision and therefore to report to the Department of Correctional Services, to obey the lawful directions of your supervisor including to attend, as the supervisor directs, the counselling which you are currently undertaking, or any other form of counselling that the supervisor might think is appropriate.
It can be seen that her Honour was alive to the consequences for the appellant if a conviction was recorded however she determined in the end that the public interest in recording a conviction must outweigh the appellant’s personal interest in the matter.
It might be said that her Honour did not give much weight at all to the submission that the appellant’s future prospects of employment would be greatly affected by the recording of a conviction. In my view her Honour did underestimate the difficulties the appellant could face in obtaining employment given that she was then 52 years of age and by the recording of a conviction was precluded from working in the security industry as she had done previously.
Nevertheless, I accept the Director’s submission that the nature of the offending was too serious to prevail over the issue of employment and in the end, the consideration of the appellant’s employment prospects could not be determinative of the matter.
Section 16 of the Sentencing Act provides:
16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Having determined that the objective circumstances of the offending were too serious not to impose a sentence of imprisonment, the Magistrate was correct to decline to exercise the powers under s 16 of the Sentencing Act. In my view the power in s 16 not to record a conviction is not available if the offending calls for a sentence of imprisonment to be imposed. For the same reason it would not have been appropriate for the Magistrate to utilise the provisions of s 39 of the Sentencing Act which empowers a court, if it thinks that good reasons exist for doing so, to discharge a defendant without recording a conviction and without imposing a penalty.
There were plainly some aspects of the appellant’s attitude expressed throughout the proceedings and in some of the appellant’s comments to the psychologist which caused the Magistrate some concern in terms of the appellant’s contrition and prospects of rehabilitation.
Although the offences were committed when the appellant was in a volatile and unstable mental state, that very circumstance heightened the seriousness of her conduct on 18 June 2012. She armed herself with a knife and went to a place where she knew the victim would be. She sent threatening text messages to him and then actually threatened him with the knife. When he ran away into the Wheatsheaf Hotel she turned her attention to his motor vehicle and slashed a tyre. Even after slashing the tyre she sent another threatening text. In these circumstances it is not surprising that the victim was in fear.
On any view, the appellant’s offending was serious. This Court has repeatedly said that people who arm themselves with knives or introduce knives into a volatile situation must expect to receive condign punishment. Given the appellant’s state of mind and vulnerability at the time when she committed this offence it is perhaps fortunate that no more serious consequences occurred.
Although a sentence of two months imprisonment is a substantial sentence for a first offender, in my view it could not be said that that sentence is outside the range available to the Magistrate. The offence of aggravated assault carries with it a maximum penalty of four years imprisonment. The penalty of property damage in the circumstances carried a maximum penalty of 10 years. Both were serious examples of those offences.
I am mindful that on appeal this Court does not substitute its view as to an appropriate penalty whenever that differs from that of the sentencing Magistrate. This Court interferes only when it is satisfied that the sentencing Magistrate has made some error, or has allowed irrelevant considerations to influence it, or has failed to have regard to a relevant consideration, or, even though no precise error can be identified the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly.[1]
[1] See Wittwer v Police [2004] SASC 226 per White J.
Having regard to the objective seriousness of the appellant’s offending I do not consider that it can be said that the Magistrate has made any error in refusing to exercise the powers available to the court under s 16 or s 39 of the Sentencing Act. Nor do I consider that the sentence is manifestly excessive. No other error of law or fact in the approach taken by the Magistrate has been demonstrated.
For these reasons the appeal must be dismissed.