DPP v Chen
[2023] ACTSC 154
•23 June 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Chen |
Citation: | [2023] ACTSC 154 |
Hearing Date: | 19 June 2023 |
DecisionDate: | 23 June 2023 |
Before: | McWilliam J |
Decision: | (1) Pursuant to s 24 of the Crimes (Restorative Justice Act) 2004 (ACT), the offender is referred for participation in the restorative justice process. (2) For the offence of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (CAN 21/2023), without convicting the offender of the offence an order is made under s 17 of the Crimes (Sentencing) Act (ACT) requiring the offender to sign an undertaking to comply with the good behaviour obligations under s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) with supervision only for the period deemed necessary by ACT Corrective Services for a period of 18 months, to commence on 23 June 2023. |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – threat to inflict grievous bodily harm – whether non-conviction order should be made |
Legislation Cited: | Crimes Act 1900 (ACT) s 31 Crimes (Restorative Justice) Act 2004 (ACT) ss 6, 14, 19, 24, 25, 46 Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 |
Cases Cited: | Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Mammoliti v Callaghan [2022] ACTSC 259 Markarian v R [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Mearns v Neills [2016] ACTSC 36 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 QU v Cattanach [2018] ACTSC 163 R v Cajina [2021] ACTSC 353 R v CV [2013] ACTCA 22 R v FI [2017] ACTSC 190 R v Forrest [2016] ACTSC 321 R v Forrest (No 2) [2017] ACTSC 83 R v Hudson [2019] ACTSC 110 R v Kilic [2016] HCA 48; 259 CLR 256 R v Mauger [2012] NSWCCA 51 R v McHenry [2020] ACTSC 254 R v Saulala [2016] ACTSC 48 Thorn v Laidlaw[2005] ACTCA 49 Veen v The Queen (No 2) (1988) 164 CLR 465 Wells v Mount [2020] ACTSC 333 |
Parties: | Director of Public Prosecutions Bin Chen ( Offender) |
Representation: | Counsel M Dyason ( DPP) M Thangaraj SC, K Lee ( Offender) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Offender) | |
File Numbers: | SCC 102 of 2022 |
McWILLIAM J:
Mr Bin Chen has pleaded guilty to one charge of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (CAN 21/2023). The maximum penalty for this offence is five years’ imprisonment.
Facts of the offending
The facts are agreed and summarised as follows.
The offender founded a construction supply company in Australia in May 2019. The company provides light steel framing for construction projects. At that time, he employed the victim, Mr Siqi Liu. Within the company, Mr Liu was a Team Leader from February 2020 and a Production Manager from 10 November 2020. He resigned in May 2021, and then went about trying to establish his own business in Canberra.
It appears that the business Mr Liu was trying to establish was in a similar field to the offender’s business. On 24 June 2021 at 11:25pm, the offender sent Mr Liu the following message on WeChat:
If you dare let me know again that you are working in light steel house frames in the Canberra market or should you dare steal my designer and other employers using the excuse of making light steel caravan house, I won’t let you off the hook LIU Siqi.
Over the course of the next day, the offender sent further messages to Mr Liu. They broadly addressed a concern by the offender that Mr Liu would take trade secrets from the offender’s company and use them to his advantage in establishing his new company. Mr Liu denied these claims, and suggested the offender talk to him face-to-face to clarify the situation.
A face-to-face meeting then transpired. On the evening of 25 June 2021, the offender and Mr Liu met at around 10:00pm in the offender’s car. The offender had parked near the apartment where Mr Liu lived. Mr Liu recorded the conversation they had on his Apple Watch. The conversation lasted for around 16 minutes in Mandarin and included the threats that constituted the offending.
The offender first asked Mr Liu what he was up to and asked him repeatedly to reveal who his investors or partners were. Mr Liu refused to answer these questions. The offender said (emphasis added):
If I find out that you're participating in anything to do with light steel in this market, don't worry, that's a dead end for you. Do you believe me or not? I will make it that you will have no fingers left to screw any screws, do you believe me? Do you believe it or not, I am asking you?
The victim replied, “I do”.
The offender made various other threats over the course of the conversation, to which the victim in reply generally attempted to appease the offender. These included the following statements from the offender (emphasis added):
Today, if you dare to do anything that is against the principle of the company ever again, since you worked for me for such a long time, and if you ever leak any company secret or anything about the operation of the company, or participate in anything that may damage my company, Siqi Liu... Don't you worry, you will have no fingers left to screw any screws. Do you believe me or not, I am asking you?
The victim replied:
I do, Big Bro Chen. I do intend to have a good chat with you today.
The conversation continued, with the offender saying:
If you behave yourself, let me tell you, I can leave you with a way out, if you dare act out of line, I'll destroy you, let me tell you, I'll squash you like a motherfucking ant, do you believe me?
The victim replied:
I do believe you, Big Bro Chen, I always believe in your ability to do anything, otherwise, why would I have been working for you? It just proves you are very capable.
The offender then said:
Let me tell you, with my capability, I would never do any harm to my own brothers. However, if harm is done to me, then I will not fucking let them go. You just remember it, Siqi Liu. I am making my words crystal clear today. The purpose of my meeting with you today is for me to give you a warning in person. Let me tell you too that today I am meeting you, but next time it won’t be me. Do you believe me? As long as you are in Canberra, believe me, wherever you are going to open your factory, you will be fucking followed there, do you believe me, Siqi Lui? Wherever you fucking live, you will be followed all the way. I am just telling you today, you little punk. Do you believe me?
The victim replied: “Big Bro Chen”. The offender continued:
I am just telling you today, you just remember it, no matter where you open your factory, someone will be following you all the way there; someone will be following you all the way to your home; I am making my words crystal clear today. I meant what I said, Siqi Liu. You have not seen my vicious side yet. I, Bin Chen, have come a long way, and I am definitely not what you think I am. You just remember it, Siqi Liu, you will be destroyed and you won't even know who did it to you, just you remember. Do you remember it?
The victim replied: “I do”. The offender then reminded the victim of all the help he had given him in obtaining residency status in order to remain in Australia, after which he said:
...I don't care if you don't fucking remember my kindness to you, but just don't fucking backstab me. If you ever do anything to jeopardise my company, I will make it that you will have no fingers left to screw any screws, you just remember it for me. As long as you are in Canberra, you will be followed. Remember, Siqi Liu. l am delivering you a warning in person today, and I want you to know it is not a threat but a warning. A threat is just verbal without any action, a warning is to tell you in advance what will happen later, just you remember.
The offender wanted to know the name of the person who the victim was doing business with (referred to as the victim’s corroborator). The victim refused to tell him. Interspersed with those exchanges, the offender said the following:
If you ever dare to sell my company’s information to outsiders, like what system I use and what equipment I use, I’ll destroy you.
…
l am still saying the same thing, you won't have any fingers left to screw any screws in the second half of your life. I am making my words crystal clear today...
….
…No matter where you open your factory, as long as you are in Canberra, Siqi Liu, no matter where your factory is, it will definitely, definitely be in my territory, and I will definitely find you. It’s that simple. I will definitely be able to find you, and it’s that simple. Also there will definitely be someone following you, it’s that simple. Forget about having a peaceful and quiet life, I am telling you. If you think Bin Chen is someone who only talks and no action, then try me.
The victim then said that he did not think that and that is why he had met the offender that day, to clarify things. Mr Liu wanted to tell the offender that he would not work in the same field as the original factory. The offender told him not to say anything else, that he would make up his own mind, and then repeated that he was making his words crystal clear, and that he meant what he said.
The highlighted passages in the extracts of the recorded conversation above are the threats constituting the offence of threatening grievous bodily harm.
After the conversation concluded, Mr Lui left the vehicle and, picking up his wife from a party, returned home. He played his wife some of the recorded conversation. They were both concerned, so they spoke with some lawyers who suggested that they go to the police. Mr Liu was scared for himself and his family. He was stressed and contemplated moving home to China as he no longer felt safe where he lived. He went to the police and reported the offender’s conduct.
The Court’s sentencing task
In sentencing the offender, the Court must have regard to the various considerations set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The nature and circumstances of the offence (s 33(1)) have already been set out above and its objective seriousness is discussed below. To the extent that other considerations listed in s 33 are relevant, they have been included in the discussion that follows.
The Court must also sentence the offender having regard to the relevant sentencing purposes in s 7 of the Sentencing Act, which are as follows:
7Purpose of sentencing
(1)A court may impose a sentence on an offender for 1 or more of the following purposes:
(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender;
(g)to recognise the harm done to the victim of the crime and the community.
The above sentencing objectives do not all point in one direction (see Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [58] and the case there-cited). There is a tension that the Court must balance. On the one hand, the purpose of the sentence is to denounce the conduct, punish the individual offender and deter him (in this case), by making him accountable for his choices. The sentence should consider what is necessary to protect the community, by deterring others from committing the same offence. The sentence also plays a role in recognising the harm to the victim. Equally though, the Court must promote the rehabilitation of the offender.
It is also important to keep in mind what was said in Thorn v Laidlaw[2005] ACTCA 49 at [30], in that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives. I adhere to the view I expressed in Mammoliti v Callaghan [2022] ACTSC 259, where I observed at [38] that the same must be true of any sentence to be imposed by the Court, regardless of whether it includes a term of imprisonment.
Plea of guilty
The offender pleaded guilty at an early opportunity. Section 35 of the Sentencing Act provides for the court to impose a lesser penalty on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. However, the section only applies if the court considers that there is a real likelihood that it will sentence the offender to imprisonment (s 35(1)(b) of the Sentencing Act). That is not the case here.
That does not mean the plea of guilty is put to one side. On the contrary, s 33(1)(j) of the Sentencing Act requires the court to take into account a plea of guilty by the offender. The plea did avoid a criminal trial and spared the victim and his wife from giving evidence.
Objective seriousness
When considering the seriousness of the case before it, the Sentencing Court considers where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
When the Court speaks about assessing the “objective” seriousness of the conduct, the task that it is describing is one that considers the conduct without regard to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The subjective features (being the aspects of the offending personal to the offender) and the after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
The maximum penalties provide yardsticks against which to assess the objective seriousness of the offences before the court: Markarian v R [2005] HCA 25; 228 CLR 357 at [31], which is why the 5 years’ imprisonment penalty was included at the commencement of these reasons. The offender accepted that the offence of threatening to inflict grievous bodily harm is a serious offence.
For the present offence, the parties helpfully pointed to R v Cajina [2021] ACTSC 353 where Refshauge AJ outlined the following features that may aggravate the offence of threatening to inflict grievous bodily harm at [34]:
Matters that will ordinarily aggravate the offence will include whether the threat is made directly to and in the presence of the victim, such as when standing directly in front of or over the victim, where the threat can easily be actually carried out then and there (R v Catanzariti [2014] ACTSC 333 at [27]), or where the threat is to inflict the harm with a firearm and where the threat is made in the victim’s home (Hudson v The Queen [2020] ACTCA 46 at [36]). Clearly, the actual presence of a weapon is an aggravating feature, as is premeditation or planning.
In this case, the following factors affect the objective seriousness:
(a)The threat was made directly to the victim and in his presence.
(b)However, that is somewhat ameliorated by the nature of the threat of harm itself. It was not immediate or imminent, in that the threat was couched in terms of future action if the offender discovered he had been betrayed by the victim setting up a rival business, disclosing company information or doing anything to damage the offender’s business.
(c)While the threat implied the use of a weapon such as a knife, there was no evidence as to any weapon in the offender’s possession.
(d)The threat was not made in the victim’s home. It was made when the two were sitting in the offender’s car. The victim was there voluntarily and was able to leave the car at any time, which he did.
The prosecution submitted that there was a degree of premeditation or planning. While the offender and the victim obviously made a plan to meet, I do not accept there was any particular premeditation to make the specific threat.
The offender submitted the threat was made recklessly, when he was in a highly emotional state. I do not accept the conduct can be categorised as recklessness. What was said was obviously a serious threat. The words were repeated four times during the 16-minute meeting. I have set out the context to the threat in the agreed facts above because I consider it shows that, however emotionally-driven the sentiment was, when the words were said in the car, the offender intended the victim to fear that the threat would be carried out in the future if the victim acted in a way that the offender believed damaged his business.
However, given the broad spectrum of conduct falling within the offence itself, the above factors point towards the low end of objective seriousness.
Victim impact statement
Mr Liu provided a victim impact statement to the Court, that was read onto the record by the prosecution.
Mr Liu stated that he has “fallen into darkness” that impacts his daily life. He used to be brave and enthusiastic. He used to enjoy daily life, teamwork with colleagues and cooking for his family after work.
He says he has now lost interest and patience in everything. He has lost his appetite, and his sleep is affected. He feels frustrated, hopeless and irritable. Mr Liu says he has lost confidence at work and happiness with his family and friends.
He says that he relies on daily medication which he has taken since the offending, and a weekly visit to his psychologist to live a normal life. The victim feels that nothing is getting better.
It cannot be said that the offender’s meeting with the victim had no impact on him. The victim’s statement suggests an ongoing psychological impact. That is understandable in circumstances where the agreed facts reveal that the victim previously saw the offender as a big brother, who had looked out for him.
That is consistent with the offender’s evidence in his letter to the court, where he spoke of the victim as a trusted employee at manager level in his small business, who the offender had personally mentored and supported. When the offender became aware that the victim had left the business to help set up a competing business, he became very distressed. The fact that the victim was approaching staff and customers felt like a personal betrayal.
I have juxtaposed what drove the offender’s threat with the victim’s impact to highlight that in this case, the sense of betrayal worked both ways.
Subjective circumstances of the offender
In addition to the letter from the offender, the court had before it a court duty report and a number of letters of reference in support of the offender’s good character.
The offender is 40 years of age. He was born in China to a supportive family. He emigrated to Australia in 2010 and became a citizen in 2016. The consequence of that was that he surrendered his Chinese citizenship. He has a family in Australia comprising his wife and two sons, who are ages eight and 10. He has the ongoing support of his family.
It is undoubtedly the case that the offender is a person of general good character. He has no prior offending, and the references provided to the Court describe him as a hardworking businessman and loving family man. He and his wife have donated large amounts to charity over a number of years, including to local Canberra organisations and sponsoring sporting associations. He has no apparent history of violence, whether actual or threats. He is clearly regarded as a generous and respected member of society. He runs a local business that employs around 15 staff and has no history of problems with employees.
I do have a concern that beneath the surface of the ‘model upstanding citizen’ picture presented above lay an underlying ruthlessness in the offender. The former employee victim obviously saw fit to press the record button on his Apple watch before he got in the car with the offender, and the threat itself appears to have been a flash of a person who knew that he could, and did, wield power over people (recalling the belittling language used in the car, of “you little punk”).
But the offender has an unblemished criminal record. The purpose of considering an offender’s criminal record (as required by s 33(1)(m) of the Sentencing Act) was explained in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8 and repeated in this jurisdiction by Refshauge J in Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [38]. Without setting out the well-known passage, an offender’s criminal history might be relevant to assessing “whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law”. The offender’s complete lack of criminal antecedents does warrant the court taking the threat into account as an uncharacteristic aberration.
The offender has no history of drug or alcohol abuse.
In his letter to the Court, the offender expresses his sincere remorse for his offending. He accepts full responsibility for his actions, acknowledges that there is no excuse for his conduct nor anything he can do to undo the wrongdoing and pain he has caused the victim. He is full of apology and regret. He states that he is ashamed and embarrassed by his behaviour and has let down both himself and those close to him. I accept that the letter is genuine, and that the offender has demonstrated insight into his offending and does feel remorse for the harm he has caused (s 33(1)(w) of the Sentencing Act).
The Court is required to take into account the reason why the offender committed the offence (s 33(1)(v) of the Sentencing Act). The offender describes in his letter – and it is corroborated by some of the letters of reference – that at the time, the offender was under significant professional stress due to his trusted production manager (the victim) leaving his business. As I have set out above, and as is apparent from the threat that was made, he was very concerned about the victim taking away staff and customers of his business. The small business could not afford to lose any staff as it would have a significant impact on his ability to fulfil contracts. In the offender’s mind, there was a risk that the actions of Mr Liu could lead to the end of his business. It is clear from the materials that the offender is passionate about his work and the livelihood of his business, in which he has invested greatly. Of course, this context explains, but does not excuse, the offending, and the offender candidly acknowledges this. I will return to this matter below.
Comparable cases
The prosecution provided four cases involving the same offence. These were R v Cajina [2021] ACTSC 353, R v McHenry [2020] ACTSC 254, R v Hudson [2019] ACTSC 110 and R v Saulala [2016] ACTSC 48. The parties submitted, and I accept, that all involve much more serious offending and none are particularly helpful in light of the objective and subjective features I have discussed above.
Restorative Justice
The offender was thought by the author of the court duty report to be ineligible for a referral for restorative justice due to the nature of the offence. However, the offence itself is not excluded from the application of the Crimes (Restorative Justice) Act 2004 (ACT) (RJ Act). Under s 14 of the RJ Act, the offence is classified as a “less serious offence” to which the Act applies.
Under s 19(1)(b)(i)(A) of the RJ Act, the offender is eligible because he has accepted responsibility for the commission of the offence through his plea of guilty. The Court has the power to refer the matter for restorative justice if satisfied that there is an eligible offender, there is an eligible victim (in this case, being someone over 10 years of age), and that an explanation has been given under s 25 of the RJ Act, before the offender agreed to take part in the process.
Before the delivery of this sentence, I drew the parties’ attention to the requirements of s 25 of the RJ Act. Now having had those matters explained to him by his legal representatives, the offender has agreed to take part.
I note that the mere fact of participation in the restorative justice process may or may not, of itself, be demonstrative of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take part in restorative justice and the participation of an offender in restorative justice is a relevant consideration independently of statute: see R v Forrest (No 2) [2017] ACTSC 83 at [154] and the cases there-cited.
In light of the contents of the offender’s letter to the Court and the victim’s impact statement, I have formed the view that this is a matter where restorative justice could be of real benefit. The objective of the restorative justice process is victim-focussed. Among the objects of the RJ Act (s 6) is a desire to “enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences”. As section 46 of the RJ Act provides, the process can take many forms. One feature of the process, for example, to ameliorate any real or perceived power imbalance that a victim may feel, is that it does not necessarily involve a face-to-face meeting. It may involve the exchange of written or emailed statements between participants, of pre-recorded videos between participants, teleconferencing or videoconferencing.
The offender who is before the Court is fundamentally a person of good character who, during a brief meeting, made a vicious threat to someone with whom he had a significant personal history of trust and whom he felt he would be lost without when that person chose to move on to other employment. The victim himself has said to the Court that nothing is getting better and that he has lost his confidence and enthusiasm. The victim has in the past looked up to the offender and benefited from the offender sponsoring the victim in remaining in Australia. The offending occurred in the context of a professional rift, but there is a deeply personal element to it.
The Court is unaware of whether the victim would be prepared to participate, but given that the whole process is victim focussed, restorative justice may empower the victim by giving him the opportunity to tell the offender how to make reparation to him. It may give the victim back the enthusiasm for life he once had. On the basis that where otherwise appropriate, it is better to try then pass up the opportunity, I will refer the matter.
The appropriate sentence
Specific deterrence carries little weight in this case and for this offender. It has been addressed through the court process and the publicity and embarrassment suffered by the offender, as well as the restorative justice process if it takes place.
General deterrence and the appropriate denunciation of the offence is important. People cannot go around threatening to chop a person’s fingers off, which is effectively what this threat amounted to, every time an employee wants to spread their wings elsewhere. That is so even if the employee might be doing something that may be a breach of a contractual restraint clause, such as poaching staff or working with a competitor. I say ‘might’ because I wish to make it clear that none of those matters were the subject of any findings for present sentencing purposes. My initial view was that because of the seriousness of the offence, the entry of a conviction was appropriate.
However, the entry of a conviction will have a real impact on the offender, the offender’s wife and family, given the frequency with which they return to China to visit their families (and the fact that they are no longer citizens there) and the letters before the court also referred to the international travel the offender does for work, which may be affected depending on the entrance requirements for each country. The Court must take into account the probable effect that any sentence or order under consideration would have on the offender’s family or dependants: s 33(1)(o) of the Sentencing Act. I will return to that matter below.
Under s 17 of the Sentencing Act, a Court may, upon an offender being found guilty of an offence, enter a non-conviction order in respect of that offence either dismissing the charge or imposing a good behaviour order. A non-conviction order with the imposition of a 12 months’ good behaviour order was sought in this case, and the prosecution properly indicated that he did not seek to be heard against the making of such an order.
In Mammoliti v Callaghan [2021] ACTSC 259 I said the following at [31]-[32]:
31.It was argued that the recording of a conviction is a formal mark of society’s disapproval of the wrongdoing and also forms part of the offender’s punishment: Lukatela v Apostoloff [2010] ACTSC 74 at [29]. A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The absence of a conviction has been described as an “exceptional outcome”: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [42], citing Stark v Plant [2010] WASCA 74 at [18].
32.All of those submissions must be accepted. However, an exceptional outcome does not require exceptional circumstances before a non-conviction order may be imposed. What is required is “compelling circumstances” to be demonstrated before a court is “persuaded to deviate from the ordinary consequence of criminal offending”: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 at [49] per Burns J, who went on to state:
The section is not a “first offenders” provision, so that a lack of prior convictions would not, of itself, ordinarily satisfy the requirement to demonstrate compelling circumstances justifying a non-conviction order. Virtually every offender who comes to be sentenced by a court will put material before the court concerning their character, antecedents, age, health, or mental condition. Many will also suggest that the offence was committed under extenuating circumstances. When properly analysed, in most cases the material will not take the offence or the offender outside the ordinary.
The offender’s legal representatives drew the Court’s attention to the decision of R v Mauger [2012] NSWCCA 51 (Mauger), where the NSW Court of Criminal Appeal made some observations about a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which is a broadly equivalent sentence to the one under contemplation here, namely a non-conviction order with a good behaviour order attached to it. The NSWCCA referred at [19] to the principle that:
Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence:[citations omitted here] … However, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577.
In considering whether the primary judge was correct not to record a conviction, Harrison J (with whom Beazley JA and McCallum J agreed) stated at [36]-[37] (emphasis added):
36.…It is implicit in the position taken by the Crown that the recording of a conviction is a matter of special significance or importance in this case.
37.Whilst that contention is understandable as a general proposition, it is important that it not be permitted in this case to dilute or to downgrade the significance of the imposition of a bond. If the seriousness of the present offence 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. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence.
That paragraph was also applied in R v CV [2013] ACTCA 22 at [59].
Further, as Mossop J stated in R v FI [2017] ACTSC 190 (R v FI) at [28], s 17 does not require the offence to be a trivial one and is not confined to cases in which there are extenuating circumstances. Mossop J was there dealing with an offender who pleaded guilty to one count of sexual intercourse with a young person, an offence for which the maximum penalty is 14 years imprisonment. His Honour went on to state at [28]:
…I was initially of the view that the seriousness of the offence and the need for general deterrence was such that a conviction should be recorded along with the imposition of a good behaviour order. Having regard to the consequences that would flow from the recording of a conviction, the lack of utility of those for the protection of the community and the impact that those restrictions would have upon the future employability of the offender, I consider that an order under s 17 is warranted.
In QU v Cattanach [2018] ACTSC 163, Burns J similarly confirmed at [4] that there was no requirement for a Court to find that an offence was trivial before exercising the discretion under s 17 of the Sentencing Act.
Also consistent with what has been stated by Mossop J in R v FI is Mearns v Neills [2016] ACTSC 36, where Penfold J was dealing with an appeal on a sentence for assault and an act of indecency. The issue was whether the entering of a conviction was manifestly excessive in the case of an older offender with good character. Her Honour referred at [34] to the established position that there is no particular restriction on the kinds of offences in respect of which non-conviction orders could be made. Her Honour cited numerous cases to establish that position. It is unnecessary to repeat those citations here.
Penfold J later discussed s 17(3) and 17(4) of the Sentencing Act. S 17(3) sets out a number of matters the court must consider in deciding whether to make a non-conviction order for the offender. Those matters are:
(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.
Section 17(4) permits the court to consider “anything else the court considers relevant”. Her Honour emphasised at [44] that those provisions do not set out any criteria that must be satisfied before a non-conviction order may be made.
In Wells v Mount [2020] ACTSC 333 Loukas-Karlsson J was dealing with whether to make a non-conviction order for an offence of stalking. Her Honour referred at [98]-[99] to the importance of “individualised justice” in stating that “the Courts must play their part in denouncing [the] conduct” that constituted the offence in question, but that did not mean that in every case of that nature, there must be a conviction.
This is not intended to be a comprehensive list of cases where a non-conviction order has been made for serious offences. What it is intended to explain is how the Court recognises that the people who are coming before it require individualised justice for their particular set of circumstances, and that people are not robots of perfection who never make a mistake.
This 40-year-old offender is uncontroversially regarded as a person with a very low risk of re-offending. He has had a serious misstep, but he has otherwise demonstrated his good character and pro-social factors through an unblemished criminal record and very significant community contributions through his business and family. The objective seriousness is low, his rehabilitation prospects are high, the recognition of victim impact is seen through the sentence that I will impose as well as the potential for restorative justice to take its course if the victim decides that is appropriate. Personal deterrence, general deterrence and Court denunciation objectives can all be given effect through the good behaviour order that will be imposed and that means that recording a conviction in the present case would serve little utility.
It may also be that there would be adverse consequences of such an order for the family and the offender, in terms of restricting ability to travel now that they may no longer enter China as of right, both personally and through the consequences for their family business. That would be a disproportionate outcome to the offending and that is plainly undesirable in light of the sentencing objectives discussed at the outset of these reasons. However, in Mauger, Harrison J referred at [31] to the following:
…It does not seem to me that generalised prognostications about the respondent's ability to travel overseas unsupported by clear evidence could properly be matters that fell within what is contemplated by the words "any other matter that the court thinks proper to consider". It may be different if the sentencing judge were confronted with evidence to suggest that a particular offender faced the loss of his livelihood as the result of travel restrictions upon convicted persons, or that he faced the prospect of the loss of the ability to visit, or return to, family overseas, in which circumstances some definite and enduring hardship or disruption could be demonstrated or confidently predicted.
During the hearing, the offender accepted that the evidence here was not sufficient to make a positive finding about the consequences of travel restrictions for the offender or the offender’s livelihood. While the evidence may have enabled a prediction that the offender would face the prospect of the loss of the ability to return to family overseas, as I have indicated above, extenuating circumstances such as those are not a necessary pre-condition to the making of the order, and the cautious approach is not to rely on that matter. The other considerations to which I have just referred separately justify the making of a non-conviction order.
As to the length of the good behaviour order, the submission was that it should be imposed for 12 months. Recalling that the duration of the bond plays a part in denunciation and general deterrence (Mauger at [37], cited at [64] above) I propose to make it 18 months. If the offender lives up to what has been presented on paper, that extra period of compliance should be of no difficulty for him. However, the intention behind it is to signal to the community, and the victim within that community, that there is denunciation of what has occurred, and that there is an extra period of Court imposed protection through the order being made. For a person who values their reputation, as this offender clearly does, having a court order hanging over their head for such a period of time, even though they will readily comply with it, will be a daily implicit or latent weight.
Sentence
The orders of the Court are as follows:
(1)Pursuant to s 24 of the Crimes (Restorative Justice Act) 2004 (ACT), the offender is referred for participation in the restorative justice process.
(2)For the offence of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (CAN 21/2023), without convicting the offender of the offence an order is made under s 17 of the Crimes (Sentencing) Act (ACT) requiring the offender to sign an undertaking to comply with the good behaviour obligations under s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) with supervision only for the period deemed necessary by ACT Corrective Services for a period of 18 months, to commence on 23 June 2023.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: 23 June 2023 |
6
22
5