JAPSON v POLICE - [2018] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAPSON v POLICE
[2018] SASC 139
Judgment of The Honourable Justice Kelly
20 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeal against sentence.
Following a trial in the Adelaide Magistrates Court the appellant was found guilty of two counts of aggravated indecent assault of a female victim. The Magistrate sentenced the appellant to a single sentence of two years imprisonment and imposed a non-parole period of six months. The Magistrate declined to suspend the sentence or order that the sentence be served on home detention.
The appellant appeals the sentence on six grounds each alleging an error made by the learned Magistrate in sentencing as well as a complaint that the sentence is in itself manifestly excessive.
Held per Kelly J allowing the appeal and resentencing the appellant:
1) The Magistrate erred in failing to consider home detention as a condition of a suspended sentence as being an available sentencing option for the appellant.
2) The appellant is resentenced to a period of two years imprisonment with a non-parole period of four months suspended upon the appellant entering into a bond to be of good behaviour for two years and other conditions.
Sentencing Act 2017 Section 96, referred to.

JAPSON v POLICE
[2018] SASC 139
Magistrates Appeal: Criminal
KELLY J:

On 27 February 2018 after a trial in the Adelaide Magistrates Court the appellant was found guilty of two counts of aggravated indecent assault of a female victim. Each count related to separate episodes of indecent touching during a 10-minute episode at the end of a remedial massage performed by the appellant. The circumstance of aggravation was the fact that at the time of the offending the appellant abused a position of trust as he was a masseur and the complainant was his client. The maximum penalty for each of the aggravated offences is 10 years imprisonment.
On 21 June 2018 the Magistrate sentenced the appellant to a single sentence of two years imprisonment and imposed a non-parole period of six months. The commencement of the sentence was backdated to 14 June 2018 being the date on which the appellant was remanded in custody. The Magistrate declined to suspend the sentence or order that the sentence be served on home detention.
The appellant now appeals the sentence on six grounds including alleged errors made by the Magistrate in failing to suspend the custodial sentence pursuant to s.96 of the Sentencing Act 2017 (“Sentencing Act”), failing to consider and impose an intensive correction order pursuant to s.81 of the Sentencing Act, erring in her Honour’s interpretation of s.71(2)(b)(ii) and s.71(4) of the Sentencing Act relating to home detention and failing to give adequate or sufficient weight to the appellant’s vision impairment and its impact on serving a sentence of imprisonment. Finally, the appellant complains that the sentence itself was manifestly excessive.
The appellant is a 41-year old man who at the relevant time was working as a masseur in a business known as “Massage and Bodywork Studio” located in Rundle Mall.
The facts on which he was to be sentenced were as follows. The appellant gave the complainant a 30-minute massage completed without incident. At the conclusion of that massage he offered her an extension to which she agreed. During the period of extension of the massage the appellant deliberately placed his hands underneath the complainant’s chest and massaged her breast tissue. He placed one hand under her lower abdomen and then inside her underpants and massaged her groin area with his hand and fingers.
After removing his hand he moved to the other side, massaged the complainant’s back and then lowered her pants completely exposing her buttocks. He then deliberately pushed his hand under her body and rubbed her groin up and down with his fingers near her clitoris. While he was doing that the appellant pushed his other hand under her chest and twisted her nipple. He then moved to the top of the table, again massaged her shoulders and then deliberately pushed his hands under her chest again and massaged her breast tissue before removing his hands and telling her that he hoped he did not cause her much pain.
That is the conduct which formed the basis of the verdicts of guilty on the two counts of indecent assault. The complainant, a young woman, was shocked and visibly distressed by what had occurred and made an immediate complaint.
The appellant pleaded not guilty and denied any inappropriate touching. However, after he was found guilty, on 21 June 2018 being the date of sentence and when further submissions were made before the Magistrate, he finally admitted his guilt and expressed remorse for his offending against the complainant.
The appellant has been in Australia for some 30 years. He has no prior convictions. He suffers from a significant vision impairment as a result of glaucoma. His blindness prevented him for pursuing a career as a graphic designer, however he was able to obtain employment in the massage industry and he has been able to lead a relatively independent life as a consequence.
The Magistrate imposed one sentence pursuant to s.26 of the Sentencing Act of two years imprisonment and a non-parole period of six months. The Magistrate declined to suspend the sentence.
As to the issue of home detention her Honour stated at paragraph 7:
Counsel has urged the court to suspend any sentence imposed pressing that you are unlikely to reoffend. There was some brief discussion on an earlier occasion about the potential for you to serve any term of imprisonment which was not suspended on home detention. It appears that the new sentencing regime precludes that option for a person in your situation although I accept that it is probably a live issue.
The prosecutor who appeared before her Honour or submissions and sentencing filed an affidavit. In the affidavit he states that at the hearing on 14 June 2018 he began a submission to the effect that home detention was not an option for the appellant. He states that the Magistrate said, “Yes, I agree” or words to that effect and that he did not have the opportunity to elaborate any further on that submission.
Although her Honour may have been correct in observing that s.71 of the Sentencing Act was not available in all of the circumstances, there was no further discussion during sentencing submissions as to whether any other option might be pursued; for example whether home detention as a condition of suspending the sentence pursuant to s.96(7) of the Sentencing Act might have been appropriate in all of the circumstances.
However, the Magistrate regarded the offending as too serious to contemplate either suspension or home detention in any event.
The appellant submits that the Magistrate was in error in failing to consider either home detention pursuant to s.71 of the Sentencing Act or an intensive correction order pursuant to s.81 of the Sentencing Act.
In my view, her Honour did not make any error in declining to make any orders pursuant to either s.71 or s.81 of the Sentencing Act. I am not persuaded that the appellant complies with the exception contained within s.71(b)(ii) and s.71(4) of the Sentencing Act. That sub-section relevantly states:
(4) In deciding whether special reasons exist for the purposes of subsection (2)(b)(ii), the court must have regard to both of the following matters and only those matters:
(a) whether the defendant's advanced age or infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general);
(b) whether the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.
It is clear that the section is directed to a person whose infirmity is such that that person is no longer a risk to the community. Here, the fact is that the appellant’s infirmity, being blindness, did not stop him offending in the first place and it is difficult to assert that by virtue of that very same infirmity he is now no longer at risk simply because he has lost his job as a consequence of the offending.
Section 81 of the Sentencing Act empowers a Court which has determined to impose a sentence of imprisonment of two years or less, unsuspended, for good reason to serve the sentence in the community whilst subject to intensive correction.
In my view, it is also clear that s.81 is directed to an offender who is at a moderate to high risk of re-offending. The appellant is plainly not.
For those reasons I do not consider there has been any error demonstrated in the Magistrate’s refusal to explore those sentencing options.
However, the Magistrate was obviously alive to the implications of a person in the appellant’s position serving a sentence of immediate imprisonment. To this end, she sought a report from the Department for Correctional Services as to the potential to make suitable arrangements for a person with a vision impairment of the severity of the appellant.
Although the Magistrate accepted that home detention was a live issue for the appellant it does not appear that she ever turned her mind to the question whether home detention as a condition of a suspended sentence might be an option. To my mind, given the appellant’s prior record and unusual circumstances, that was always an option open to the Magistrate. The basis on which her Honour dismissed any form of home detention as an option seems to be primarily because she did not regard it as available under the new sentencing regime. In my view, given the appellant’s particular circumstances, a suspended sentence was a real option which does not seem to have been seriously pursued, given the view her Honour took of the effect of the new Sentencing Act, especially in relation to the issue of home detention.
For these reasons I consider that the exercise of the discretion not to suspend has miscarried and accordingly it is necessary for me to reconsider the sentence.
The appellant is now 41 years of age. He has already, by virtue of the order of the Magistrate, served 55 days in custody. On the hearing of the appeal the appellant gave some evidence of a number of incidents which have occurred whilst he has been incarcerated in Port Augusta. It seems to me these incidents demonstrate the extreme vulnerability of a blind man in close proximity with other inmates with whom he is required to share a cell.
That is one of the circumstances in combination with all of the appellant’s circumstances which persuades me that he is an ideal candidate for a suspended sentence.
The offending was undoubtedly serious, however it was an isolated episode in the course of an extensive career as a masseur in circumstances where there have never been any prior complaints about the appellant. He has lived in Australia for 30 years and has no prior convictions.
The offending came at the end of a regular massage and appears to have been an opportunistic and isolated occasion when the appellant took advantage of a vulnerable young woman.
The pre-sentence report obtained for the purpose of sentencing in the Magistrates Court was prepared prior to the appellant acknowledging his moral culpability in relation to the complainant. Even so, the writer at that stage expressed a favourable opinion as to the likelihood of the appellant engaging with therapy in order to participate in a treatment program.
In light of his disability the writer expressed the view that the appellant would be more suited to respond to intervention in a one-to-one setting rather than in group work or a particular course. In fact the writer went further and stated that participation in a group or a course may lead to exposure of the appellant to people with higher levels of criminogenic needs and issues as well as being potentially counterproductive.
Even before admitting his culpability the appellant was assessed to be within a low risk level of reoffending.
In these circumstances and given the issues which he has experienced since being incarcerated, I consider that the community is best served by the appellant serving the sentence on a bond with the following conditions to be attached:
1That he be of good behaviour, and comply with all of the conditions of this bond;
2That he not possess a firearm, or ammunition or any part of a firearm;
3That he submits to tests (including testing without notice) for gunshot residue as may be reasonably required.
4That he be under the supervision of a Community Corrections Officer for a period of 2 years and obey the lawful directions given to him by the Community Corrections Officer to whom he is assigned for the purposes of supervision and during that period of supervision not leave the State for any reason except in accordance with the written permission of the Chief Executive Officer for the Department of Correctional Services;
5That he report, within two working days of having signed this bond, at the offices of the Department for Correctional Services;
6That he reside at the home of his mother, being an address the Court has been previously advised of;
7That he attend and complete any assessment, counselling, treatment and therapeutic programs as may be deemed appropriate to effectively case manage his individual needs, with particular regard to sex offender treatment, as directed by the Community Corrections Officer assigned to supervise him.
For these reasons the appeal is allowed and the appellant is resentenced as follows. The head sentence will remain undisturbed. I acknowledge that the appellant has spent 55 days in custody. Taking into account that period of time, the non-parole period which I impose will be four months. The sentence will be suspended on the appellant entering into a bond to be of good behaviour for a period of two years in accordance with the conditions above.