HEALY v POLICE

[2020] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HEALY v POLICE

[2020] SASC 40

Judgment of The Honourable Auxiliary Justice David

19 March 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE

Appeal against sentence.

The appellant was convicted of aggravated 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 personal circumstances of the appellant including the low risk of re-offending, the impact of a conviction on his employment and the background of the offending.

Held, per David AJ, dismissing the appeal:

The sentencing Magistrate considered all matters relevant to the personal circumstances of the appellant and was entitled to approach the matter by considering that general deterrence outweighed those matters.

Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g), s 20(3), referred to.

HEALY v POLICE
[2020] SASC 40

Magistrates Appeal:  Criminal

1. DAVID AJ:          This is an appeal against sentence. On 29 March 2019, the appellant was charged with one count of aggravated assault contrary to s 20(3) and pursuant to s 5AA(1)(g) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The charge related to an alleged assault upon his wife on 2 March 2019.

2. On 27 September 2019, the appellant was convicted for that offence and sentenced to a bond in the amount of $200 to be of good behaviour for a period of 18 months.

3. The appellant now appeals against the decision of the sentencing Magistrate to record a conviction and argues that he erred in so doing. The appellant also seeks an extension of time to bring this appeal, but that has not been opposed by the respondent.

   Background facts

4. The appellant entered a plea to the above charge on 27 September 2019, the date on which he was sentenced. There was some variance, if not confusion, about the facts that constituted the charge. The prosecution alleged that the appellant and his then wife (V) were having domestic difficulties. They have since separated. Sometime around midnight the appellant was asleep in his bed and was woken up when V came into the room looking for her mobile phone and was upset she could not find it. On the prosecution case the appellant stood up and saw V’s mobile phone on the dresser and picked her up by the shoulders, moved her to the dresser, pushed her head in the direction of the mobile phone and said “there’s your fucking phone, can you see it? Now leave me alone”.

5. Counsel for the appellant conceded that he “marched” V to the dresser by holding her shoulders and moved her face in the direction of the phone. At any rate, it was obviously against her will and there was an amount of force involved, both in getting her over to the dresser and in directing her head in the direction of the mobile phone. The appellant now argues that such behaviour did not warrant a conviction and the Magistrate should have exercised his discretion and dealt with the matter accordingly.

   Matters personal to the appellant

6. At the time of the offending the appellant was aged 34 years and he had no criminal history. As a result of this offending, he had spent nine hours and 42 minutes in custody. He is employed in a managerial position, working as an electrician for Seeley International. I am told they do not know about this conviction. The effect of it is therefore problematic in relation to his employment. I am told that he and his wife are now no longer living together and Family Court proceedings in relation to their property have been finalised. There is no contact between the parties as a result of an intervention order.

   The Magistrate’s reasons

7. The sentencing Magistrate took into account the effect of the assault upon the victim, although conceding there were no physical injuries. He also took into account that there is no history of this type of behaviour, and therefore he regarded it as out of character. He also dealt with the matter on the basis that it was at the lower end of offending for this type of offence. The sentencing Magistrate, however, was concerned about general deterrence for this type of behaviour, involving violence towards female partners. He placed less reliance on personal deterrence and was satisfied that the offending was out of character and unlikely to be repeated. He also took into account that the recording of a conviction may have “some negative impact on the parameters of where you might be able to work”. He was asked to consider not recording a conviction but declined to do so, mainly on the basis of general deterrence.

   Appeal

8. The appellant now argues that the sentencing Magistrate erred in recording a conviction by not taking into account the nature of the offending, the lack of any criminal history and the potential effect on future employment. It is also to be noted that the maximum penalty for the offence of aggravated assault in the circumstances of the appellant’s offending was three years’ imprisonment.

9. In all of the circumstance the appellant argues, as he did before the sentencing Magistrate, that there was good reason in the exercise of the Magistrate’s discretion to not record a conviction. He further argues that the Magistrate erred in not so doing.

   Consideration

10. In my view, the sentencing Magistrate was entitled to approach the matter in the way he did. He was concerned about the prevalence and nature of domestic violence and considered general deterrence outweighed those matters personal to the appellant. He was entitled to exercise his discretion in that way. He considered all those matters relevant to the personal circumstances of the appellant and properly balanced them against the question of general deterrence.

11. I find that no error has been demonstrated.

    Conclusion

12. I dismiss the appeal.