GOUNDER v Police

[2020] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

GOUNDER v POLICE

[2020] SASC 39

Judgment of The Honourable Auxiliary Justice David

19 March 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION

Appeal against sentence.

The appellant was convicted of basic assault and released on a good behaviour bond. The appellant appealed on the basis that the Sentencing Magistrate erred in recording a conviction and did not consider the impact of the recording of a conviction on the appellant’s employment and did not give sufficient reasons for his decision to record a conviction.

Held, per David AJ, dismissing the appeal:

The sentencing Magistrate was appraised of submissions made concerning the possible effect of a conviction on the appellant’s employment. Whilst it would have been preferable to allude to that in his remarks, the sentencing Magistrate did not err in the exercise of his discretion in imposing a conviction.

Criminal Law Consolidation Act 1935 (SA) s 20(3); Sentencing Act 2017 (SA) s 24, s 97, referred to.

GOUNDER v POLICE
[2020] SASC 39

Magistrates Appeal:  Criminal

1. DAVID AJ:          The appellant pleaded guilty to one count of basic assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) in that on 12 April 2019 he assaulted V whilst both were on a bus at Bedford Park. At the time, the appellant was aged 43 and V was a student, aged 16. The sentencing Magistrate recorded a conviction and placed the appellant on a bond to be of good behaviour in the sum of $200 for a period of 12 months. The appellant now appeals against the recording of a conviction. He argues that the sentencing Magistrate erred in not exercising his discretion under either s 24 or s 97 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) to not record a conviction.

   Background facts

2. The circumstances of the offending were that on 12 April 2019 the appellant was seated on a bus. He saw a number of young men, including V, and his own daughter get onto that bus but then saw his daughter exit the bus. He erroneously thought that this was because she had seen V and his friends. V was sitting in front of the appellant when he heard him making certain deleterious remarks about his daughter. Previously his daughter had complained about being bullied at school and the appellant erroneously concluded that V was one of the people responsible for that behaviour. He then stood up and confronted V and, on not receiving any response, grabbed his glasses forcibly and in so doing his fingers connected with the bottom part of V’s left eye.

3. The appellant is now aged 44. He has no history of violence but has a number of traffic offences, some of which involved alcohol, and in 2004 two relatively minor dishonesty offences were dealt with by the Magistrate imposing a fine without conviction.

4. He has been employed by SA Health since 2014. He is employed as an Administrative Service Officer at Noarlunga Hospital and works with children and vulnerable people. It was put to the Magistrate and on appeal that he is required to have the working with children clearance. As part of his employment he is also required to supply a national police check every three years or upon request.

   The Magistrate’s reasons

5. The sentencing Magistrate was asked to proceed without conviction because of the circumstances of the offending, the appellant’s lack of similar offending, having no previous record of violence, and the fact that as he worked for SA Health, a conviction might well see him lose his job. It was put to the sentencing Magistrate that good reason existed not to record a conviction.

6. In sentencing, the Magistrate said:

   Notwithstanding the circumstances of the offence as they have been described and accepted by me, and notwithstanding what I understand to be a healthy work history, and your personal circumstances, I am of the view that a conviction is appropriate. There is an element, at least, of personal deterrence but also general deterrence. People need to be discouraged in some way from taking the law into their own hands and jumping to conclusions because as this case shows things can go wrong and you can get it wrong. For all those reasons, I think a conviction ought to be a part of any penalty imposed on you. I do not think we are anywhere near the stage where a period of imprisonment or anything like [that] needs to be imposed. I am simply going to convict you and place on a good behaviour bond to be of good behaviour for a period of 12 months and I am confident that you can successfully complete that bond.

   For all those reasons, you will be convicted. I intend to place you on a $200 good behaviour bond for a period of 12 months. If you breach that bond you will be back for re-sentence. There is court fees, a prosecution fee and a levy.

7. It can be seen, that by imposing a bond the sentencing Magistrate, in considering whether a conviction should be recorded or not, was concerned with s 97 of the Sentencing Act as distinct from s 24. There is clear authority to say that both sections have different roles to play. Nevertheless, for either section to be invoked, “good reason” must exist before a Magistrate can proceed without recording a conviction. The appellant argues that good reason did exist, basically because of the nature of the offending and the fact that in his reasons the sentencing Magistrate did not address the question of the effect of a conviction upon the appellant’s employment.

8. In my view, the actual offending cannot in anyway be described as trifling or insignificant although it is clearly at the lower end of the scale. The appellant has spontaneously taken the law into his own hands and assaulted his young victim in a potentially dangerous way. By grabbing his glasses and touching his eye in a public place, he has behaved reprehensively despite his erroneous view that V had somehow bullied his daughter. I do not find that his actual behaviour could be the basis of saying there is good reason not to convict either under s 24 or s 97 of the Sentencing Act.

9. On the material before me, it has been agreed that submissions were clearly made concerning his employment and the possible effect of a conviction on that employment. The Magistrate was clearly appraised of that material and obviously took it into account. It would have been more preferable if in his reasons he had alluded to that argument. It is to be further noted that there is no material placed before either the sentencing Magistrate or this Court that the fact of a conviction, as distinct from the recording of no conviction, would of itself result in the cessation of his employment. I can only assume that the facts of the case would be considered afresh by the relevant authority.

10. In my view, the sentencing Magistrate has not erred in the exercise of his discretion in imposing a conviction.

11. I dismiss the appeal.