FRANKLIN v POLICE - [2011] SASC 216

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
FRANKLIN v POLICE
[2011] SASC 216
Judgment of The Honourable Justice Nyland (ex tempore)
6 December 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appeal against sentence - plea of guilty to charge of aggravated assault - victim child diagnosed with autism - appellant was treating psychologist - Magistrate recorded a conviction and imposed a fine of $500 - whether there was good reason to exercise the discretion provided by s 16 Sentencing Act - whether Magistrate erred in recording a conviction.
Appeal allowed - spontaneous and uncharacteristic act with minor application of force - circumstances of offence place it at lower end of scale of objective seriousness - - personal circumstances of appellant considered - potential significant impact on appellant's future employment - good reason existed for Magistrate to exercise discretion provided in s 16 - conviction quashed - penalty imposed by way of fine confirmed.
Criminal Law Consolidation Act 1935 s 20(3); Criminal Law Sentencing Act 1988 s 16, referred to.
R v Stubberfield (2010) 106 SASR 91 ; R v Yousef [2005] SASC 203, considered.

FRANKLIN v POLICE
[2011] SASC 216
Magistrates Appeal

NYLAND J: The appellant was charged on complaint that on 30 August 2010 he assaulted J contrary to the provisions of s 20(3) Criminal Law Consolidation Act 1935. The offence was alleged to be aggravated as J was under the age of 12 years at the date of the offence, in addition to which the appellant was in a position of authority and knew that J was particularly vulnerable because of a physical or mental disability.
On 10 October 2011, the appellant appeared before a Stipendiary Magistrate in the Elizabeth Magistrates Court and pleaded guilty to the charge. The learned sentencing Magistrate recorded a conviction and imposed a fine of $500. There is no complaint with respect to the imposition of the fine. The only ground of appeal is a complaint that the learned sentencing Magistrate erred in recording a conviction with respect to the offence.
There is no dispute as to the circumstances of the offending. The victim J had been diagnosed with autism and at the date of the offence was aged 11 years. The appellant was his treating psychologist. On the day in question, J and his mother attended at the appellant’s rooms for treatment, which involved the placement of electrodes on J’s head. During the course of treatment, J made a comment to the appellant, as a result of which the appellant spontaneously ‘clipped’ J on the back part of his head with a minor degree of force. The appellant immediately appreciated that he had done the wrong thing and left the consulting rooms.
The appellant was represented by counsel at the hearing before the learned Magistrate. Counsel told the Court that the appellant was dismayed and ashamed of his behaviour.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: FRANKLIN v POLICE [2011] SASC 216
Case: [2011] SASC 216
Decision Date: 6 December 2011

CaseChat Overview and Summary

The case of Franklin v Police involved an appeal against a sentence imposed by a magistrate in South Australia. The appellant, Franklin, had pleaded guilty to a charge of aggravated assault against a child diagnosed with autism, who was being treated by Franklin as a psychologist. The magistrate, after accepting the guilty plea, recorded a conviction and imposed a penalty of a $500 fine. The appeal was centred on whether the magistrate had erred in exercising their discretion under section 16 of the Sentencing Act by recording a conviction.

The primary legal issue for the court was whether the magistrate had a good reason to exercise the discretion to record a conviction. Given the nature of the offence, the court had to consider the objective seriousness of the crime and the personal circumstances of the appellant. The court needed to determine if the magistrate's decision to record a conviction was appropriate, particularly in light of the spontaneous and uncharacteristic nature of the assault and the potential significant impact on the appellant’s future employment prospects.

In considering these issues, the court found that the circumstances of the offence placed it at the lower end of the scale of objective seriousness. The act was spontaneous, involved a minor application of force, and occurred in the context of the appellant’s role as a treating psychologist for the victim. The court also took into account the appellant's personal circumstances, including the potential significant impact on his future employment. Given these factors, the court concluded that there was a good reason for the magistrate to exercise the discretion under section 16. Consequently, the appeal was allowed, the conviction was quashed, and the penalty of a $500 fine was confirmed.

No additional orders were made by the court beyond quashing the conviction and confirming the fine.

Orders