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. He was in a state of shock following the incident and immediately consulted a general practitioner. In discussions with his doctor, it became obvious that the appellant had high blood pressure, was working too hard and needed to make adjustments to his work schedule. As a result, the appellant took a month’s leave of absence from work. Upon the appellant’s return to work he reduced his workload and regained his work-life balance. The appellant’s counsel acknowledged that any assault was a serious matter, but submitted that this particular incident could be regarded as being at the lowest end of the scale of seriousness as it consisted of a momentary loss of control, a low degree of force, a small degree of contact and immediate desistance from that behaviour.
Counsel for the appellant made detailed submissions about the personal circumstances of the appellant, which included the fact that he was 67 years of age with no prior convictions. He was married with two adult children and four grandchildren. The appellant was extremely embarrassed by his actions. He had devoted his entire life to caring for, and treating children with learning and behavioural difficulties. He had impeccable professional qualifications and an excellent employment history and over a long, distinguished career had cared for and assisted hundreds, if not thousands, of children.
Counsel submitted that the recording of a conviction would jeopardise the appellant’s employment as a psychologist, as it had the potential to result in his deregistration and that such a result would be disproportionate in all the circumstances. He therefore asked the Magistrate to exercise her discretion pursuant to s 16 Criminal Law (Sentencing) Act 1988 (“Sentencing Act”) to refrain from recording a conviction, on the basis that the appellant would not re-offend and he submitted that having regard to the character, antecedents, age and excellent personal circumstances of the appellant, good reason existed to refrain from recording a conviction.
The learned Magistrate accepted that the offence represented a momentary lapse of control by the appellant and that his reaction was probably due to pressure from overwork. She took into account the appellant’s age and his long and impressive career as a psychologist. She referred to the fact that he had no previous convictions and had an otherwise exemplary character. She took into account that the prosecution and the family concerned did not oppose the matter being resolved without a conviction being recorded. She was aware that such a conviction would be a possible impediment to the appellant’s registration as a practising psychologist. The learned Magistrate also accepted that it was unlikely that the appellant would re-offend. However, she ultimately concluded that a conviction should be recorded, given the circumstance of aggravation, that is that the child was particularly vulnerable and the appellant well knew that to be the case because that was his area of expertise. She then imposed a fine of $500. The modesty of the fine reflects that this was an offence at the lower end of the range of seriousness.
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.
As can be seen, exercise of the s 16 discretion is enlivened if the Court is satisfied of a number of preconditions. First, the Court must impose a fine or sentence of community service or both. Secondly, the Court must be satisfied that the defendant is unlikely to commit such an offence again. Thirdly, the Court must be satisfied there is good reason not to record a conviction in regard to one or more of the factors set out in 16(b), that is:
(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.
In this case counsel relied upon the provisions of s 16(b)(i) to argue that a conviction not be recorded and on that basis submitted that all of the preconditions set out in s 16 were satisfied so as to enliven the exercise of the discretion. However, as submitted by counsel for the respondent on the hearing of the appeal, that does not mean that the discretion is necessarily required to be exercised. The Court must still consider whether, notwithstanding the satisfaction of those conditions, it is in all the circumstances, appropriate to exercise the discretion.[1]
[1] R v Stubberfield (2010) 106 SASR 91 at para 41.
Counsel for the respondent did not dispute that the discretion not to record a conviction was enlivened, but submitted that the learned sentencing Magistrate had taken into account all relevant factors and had balanced those considerations against other factors, including the effect of the event on the victim and his family. He referred to R v Yousef[2] and submitted that there was a public interest in recording a conviction especially because it would act as a general deterrent in circumstances where a person who is in a position of trust has breached a therapeutic responsibility. Counsel also referred to the comment by the learned Magistrate with respect to the appellant’s employment that “The board, however, will still have access to the relevant information nevertheless” and argued that the submission as to the potential adverse effect of a conviction upon the appellant’s employment therefore carried little weight. However, the fact that the information as to this offence may be placed before the Board regardless of whether or not a conviction is recorded is not, of itself, a reason to refrain from exercising the discretion in favour of the appellant. In any event, it is likely that the Board’s approach to this matter will be influenced by the attitude of the Court in the resolution of these proceedings. Nevertheless, given the age and particular vulnerability of J, it was understandable that the learned Magistrate took a serious view of the matter. However, in so doing, I consider she gave insufficient weight to the particular circumstances surrounding this offence, which indicated that this was a spontaneous and uncharacteristic act committed by the appellant in an otherwise long and distinguished career in tending to children such as J, together with the immediate steps taken by the appellant to deal with the stress which prompted his actions and his obvious and genuine contrition about what he had done.
[2] [2005] SASC 203 at paras 60-61.
It appears that all of those matters were accepted by J and his family, notwithstanding the comments in the victim impact statements as the Magistrate was informed that they were amenable to these proceedings being resolved without a conviction being recorded. I consider that this is an offence at the lower end of the scale of seriousness. Taking into account all of the circumstances which includes the potential for a recorded conviction to have a significant impact upon the appellant’s future employment, this in my view is one of those exceptional cases which provided the learned Magistrate with good reason to exercise the discretion provided by s 16 of the Sentencing Act. I therefore consider that the sentencing discretion has miscarried and it should be exercised afresh.
The appeal will therefore be allowed to the extent that the conviction recorded by the learned Magistrate is quashed. There will be no conviction recorded but the penalty imposed by way of a fine is otherwise confirmed.