JOSEPH v Police - [2020] SASC 218

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
JOSEPH v POLICE
[2020] SASC 218
Judgment of The Honourable Justice Hughes (ex tempore)
29 October 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
The appellant pleaded guilty to one count of breaching an intervention order pursuant to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant had breached the term of the order prohibiting him from entering or remaining within 100 metres of the boundary of any premises at which the protected person resides or stays. The appellant was sentenced to a good behaviour bond of 15 months in the sum of $500 and a conviction was recorded for the offending.
The appellant appealed against the sentencing Magistrate’s decision to not exercise the discretion to not record a conviction. The appellant argued that good reasons existed to not record a conviction because:
• the offending itself could not be described as serious as it was only incidental;
• the Magistrate failed to take into account the passage of time between the offending that led to the imposition of the intervention order and the subject offending; and
• the Magistrate inadequately accounted for the lack of prior similar offending.
The respondent submitted that the sentencing Magistrate did not err in the exercise of the sentencing discretion as the subject offending was not inadvertent and could have been avoided, there was no evidence of insight such that personal deterrence was required, and the weight placed on the need for general deterrence was appropriate.
Held, per Hughes J granting the extension of time and dismissing the appeal:
1. The sentencing Magistrate adequately accounted for the benefits to the appellant favouring an exercise of the discretion and weighed this against the inherent public interest in recording convictions;
2. The sentencing Magistrate appropriately considered the appellant’s personal factors, his lack of antecedents, the intervention orders scheme and the circumstances of the offending before reaching the conclusion that it would not be appropriate to not record a conviction; and
3. It is important to treat breaches of intervention orders with a high level of seriousness to strongly deter such breaches and maintain the effectiveness of the scheme and therefore the nature of this type of offence does not lend itself to the court being more easily persuaded to not record a conviction.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Sentencing Act 2017 (SA) s 23, s 24, s 97; Magistrates Court Act 1991 (SA) s 42, referred to.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Saunders [2017] SASCFC 86; Police v Chilton (2014) 120 SASR 32, [2014] SASCFC 76; House v The King (1936) 55 CLR 499, applied.
R v Yousef [2005] SASC 203; Hodgins v Police [2008] SASC 176; Stubberfield v R (2010) 106 SASR 91, [2010] SASC 9, discussed.
R v Briese [1997] QCA 10, (1997) 92 A Crim R 75; Attorney-General v Smith [2002] TASSC 10; Zefi v Police [2003] SASC 218; Szep v Police [2003] SASC 144; Gronow v Gronow (1979) 144 CLR 513, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"recording a conviction”; “appeal against sentence”; “breach of intervention order"

JOSEPH v POLICE
[2020] SASC 218
Magistrates Appeals: Criminal

HUGHES J: This is an appeal against a sentence imposed by a Magistrate.
The appellant pleaded guilty to one count of contravening a term of his intervention order pursuant to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Intervention Orders Act’).
The term breached was one which prohibited the appellant from entering or remaining within 100 metres of the boundary of any premises at which the protected person resides or stays. The Magistrate imposed a good behaviour bond of 15 months in the sum of $500 and recorded a conviction for the offending.
The appellant complains that the Magistrate erred insofar as a conviction was recorded but take no issue with the imposition of the bond.
For the following reasons, I would dismiss the appeal.
The circumstances of the offending
The appellant and the protected person were acquaintances. The appellant had attended her house when they became friendly through their mutual involvement in badminton. The protected person is married. Over time, the protected person became concerned and fearful that the appellant had developed an obsession with her, and that he was monitoring her movements and keeping her under surveillance.
An intervention order was made on 9 October 2017 to protect the protected person and its terms included that referred to above, namely a prohibition on the appellant from coming within 100 metres of the protected person’s residence.
On 20 September 2019, a witness known to both the appellant and the protected person, was parked outside the rear of the protected person’s residence. He saw and recognised the appellant’s car drive down an adjacent street. He followed the car for a short distance and recognised the driver as the appellant. The appellant pulled over and the witness continued on. The appellant then followed the witness’ car for a short distance and then the cars separated and went in different directions. The incident was reported to police.
The appellant told the police that he was at the location because he was driving on his way to a haircut appointment with a barber who operated out of a garage in the area.
The prosecutor’s statement asserts that the distance between the appellant’s vehicle when it was first seen by the witness, and the protected person’s residence, was about 20 metres. It was agreed to be within 100 metres. It was also agreed that there was an alternative route to the barber’s house that would have not brought the appellant within 100 metres of the protected person’s residence. The prosecutor’s statement asserts that the alternative route would have taken the appellant within about 200 metres of the protected person’s house.
Personal factors of the appellant
The appellant is 34 years old. He was born in India and came to Australia in 2006 to pursue education. He has remained in Australia ever since completing his studies. He possesses the qualifications of a mechanical engineer however he is currently employed as a storeman. The appellant is in a relationship with a supportive partner. He has a limited prior criminal history that comprises of an offence of driving without due care and other road traffic matters.
Magistrate’s reasons
The Magistrate set out the factual background and noted that the appellant had no relevant prior convictions.
The Magistrate noted the agreed facts included that the appellant was aware of the location of the protected person’s residence and that there was an alternative route that did not entail coming within 100 metres of the protected person’s residence. He noted that no explanation was given for taking that route but that it was the appellant’s position that the breach was not deliberate or intentional.
During the course of the hearing for this appeal, counsel for the appellant made submissions that the Magistrate's reasons disclose that an erroneous conclusion was reached by the Magistrate that the appellant's secondary purpose for the subject offending was surveillance of the protected person. The paragraph of the Magistrate’s reasons that was brought to the attention of the Court reads as follows:[1]
Orders made under the Intervention Orders (Prevention of Abuse) Act are intended to protect potential victims of abuse including untoward to surveillance and monitoring. The effectiveness of the orders depends in part on their proper enforcement. If not properly enforced the effectiveness of the orders, the protection offered to the individuals for whom orders are granted, will be eroded.
[1] Sentencing Remarks of Magistrate Alexandrides dated 2 July 2020 on page 4 at [28].
I do not accept the appellant’s submissions. It is clear from the Magistrate's reasons that the reference to surveillance is to the purpose of the intervention orders scheme and that his Honour expressly acknowledged that he was sentencing on the basis that the appellant knowingly travelled within 100 metres of the protected person's house to get a haircut. This is evident by what is stated in the Magistrate’s reasons in the two paragraphs that follow the paragraph highlighted by the appellant’s counsel:[2]
The recording of a conviction carries a significant deterrent effect.
In this case the order was made to prevent conduct including conduct of the type in which you engaged in the commission of the offence. It is not okay to pass by the protected person’s place of residence, even incidentally, for any reason short of an emergency. The recording of a conviction in this case is required to ensure deterrence.
(my emphasis)
[2] Ibid on page 4 at [29]-[30].
The Magistrate further noted the appellant’s personal circumstances. The Magistrate summarised the appellant’s submissions and determined not to take into account a breach that was alleged to have occurred two days earlier but was withdrawn.
After directing himself to the terms of s 23 of the Sentencing Act 2017 (SA) (‘the Sentencing Act'), his Honour found the breach not to be trifling:[3]
I do not consider the breach of the order to be trifling despite a suggestion made by your counsel in passing. This was not a breach of an order that arose from mere inadvertence. You drove to an area knowing it was within 100 metres of the protected person’s premises when you could have quite easily taken a different route to your intended destination.
(my emphasis)
[3] Ibid on page 3 at [19].
The Magistrate observed that it was open to him to refrain from imposing a conviction under s 24 of the Sentencing Act if the Court were satisfied that it is unlikely that the offence will be committed again and there is good reason to do so having regard to the appellant’s character, antecedents, age, physical or mental condition and any other extenuating circumstances. His Honour referred to the discretion to discharge the appellant on a bond to be of good behaviour and without condition if there is good reason to do so, pursuant to s 97 of the Sentencing Act.
The Magistrate referred to the act of balancing the benefits to the individual against the public interest in a conviction being recorded and elaborated upon those factors, noting that the appellant would achieve a reputational and practical benefit if a conviction were not recorded. His Honour described the public interest in proceeding to record a conviction as follows:[4]
… The recording of a conviction serves as an aspect of punishment and signifies to the offender and the public at large that the offending of the type engaged in is serious and will not be tolerated. The failure to record a conviction where a conviction should appropriately be recorded tends to undermine the general deterrence aspect of sentencing. There is also a public interest in members of the public who have a genuine interest in an individual’s character being aware of his or her criminal history. For example, potential employers or volunteer organisations have an interest in an individual’s history when making an assessment as to whether they would make a suitable employee or volunteer worker.
It must be acknowledged too that proceeding without recording a conviction where such an approach is merited is in the public interest in that it maintains public confidence in the fairness of the criminal justice system.
[4] Ibid on page 4 at [25]-[26].
After making these remarks of general application, the Magistrate observed that the effectiveness of intervention orders depends in part on their proper enforcement. The recording of a conviction operates as a deterrent.
The order was made to prevent conduct that included the conduct that constituted the offence.
The Magistrate went on to say,[5]
I also note that the grounds for granting an intervention order under section 6 of the relevant Act are that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person and the issuing of an order is appropriate in the circumstances. The very existence of the order therefore suggests that there has been already a finding in your case that it is reasonable to suspect in the absence of intervention that you will engage in unacceptable conduct. The admitted breach of the order does not dispel that conclusion. In those circumstances, it is difficult to accept that it is unlikely that you will reoffend in this manner again particularly when there is little or no other evidence to support a conclusion that your behaviour and attitude to the protected person have changed. There is no evidence of psychological treatment or counselling and no demonstration of real insight.
[5] Ibid on pages 4-5 at [31].
Ground of appeal
The sole[6] ground of appeal pursued is that the sentence was manifestly excessive on the basis that the sentencing magistrate declined to exercise the discretion under s 97 (corrected from s 24 in the Notice of Appeal) of the Sentencing Actto not record a conviction.
[6] In the Notice of Appeal there are two grounds expressed however they are interrelated. The first ground argues that the Magistrate erred in not recording a conviction and the second ground states that the sentence was manifestly excessive as a result.
The appellant requires an extension of time. The appeal was filed on 25 August 2020 and it was required to have been filed on or about 23 July 2020. The appellant was represented by counsel in the Magistrates Court when sentencing submissions were made. The appellant states that he did not seek legal advice regarding an appeal until 29 July 2020. It then took several weeks for the sentencing remarks to be obtained. The notice of appeal was filed within approximately a week of the sentencing remarks being provided by the Court.
The Crown acknowledges that it has not been prejudiced and I would grant the appellant an extension of time to bring the appeal.
The appellant’s case
The appellant submitted that the Magistrate erred when he failed to find a good reason to release the Appellant on a bond without recording a conviction. The appellant submitted through his counsel that the offending itself “could not be described as serious”, both in its nature and in the particular circumstances of the offending, because it was “incidental”.
The appellant further argued that the Magistrate failed to take into account the passage of time since the offending, being two years, and the lack of subsequent offending.
The appellant submitted that the Magistrate also failed to give sufficient weight to his lack of antecedents. On the other hand, too much weight was given to the need for general deterrence in circumstances in which the offending was “incidental” and no contact was made with, or harm was caused to, the protected person.
The respondent’s case
The Crown Solicitor, on behalf of the respondent, argued that the Magistrate’s exercise of discretion was undertaken on the basis of relevant considerations and it was open to him to record a conviction. It was submitted that the Magistrate’s decision was properly based upon the fact that the breach was not inadvertent and could have been avoided, that there was no evidence of insight such that personal deterrence was required, and that the weight placed on the need for general deterrence was appropriate in light of the nature of the offending and the intervention order scheme.
Consideration
The task of the Court on appeal brought under s 42 of the Magistrates Court Act 1991 (SA). As the sentence involved the exercise of a discretionary judgment, the circumstances in which this Court on appeal can intervene with the sentenceare limited. The approach to be applied is that stated by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen:[7]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
(footnotes omitted)
[7] [2005] HCA 25, (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
The maximum penalty for a breach of s 31(2) of the Intervention Orders Act is a fine of $10 000 or two years’ imprisonment.
The discretion to not record a conviction
Pursuant to s 97 of the Sentencing Act, a court may, if it thinks that good reasons exist for doing so, discharge the defendant without recording a conviction, and without imposing any other penalty, on condition that the defendant enter into a good behaviour bond. Although there is no explicit definition of good reasons for the purposes of s 97, the factors listed under s 24 offer some guidance.[8]
[8] R v Yousef [2005] SASC 203 at [42]-[47] (Layton and Sulan JJ). This case considered s 16 and s 39 of the former Criminal Law (Sentencing) Act 1988 (SA) which have been replicated in s 24 and s 97 of the current Sentencing Act 2017 (SA).
Pursuant to s 24 of the Sentencing Act, a court may only decide to not record a conviction if the penalty to be imposed is a fine, community service, or both and the Magistrate is of the opinion that:
a)    the defendant is unlikely to commit such an offence again; and
b)    there exists good reasons to not record a conviction, 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.
Although the factors enumerated in s 24 may be relevant to assessing whether good reasons exist for the purposes of s 97, the court is neither required to nor confined to considering these factors.[9]
[9] Hodgins v Police [2008] SASC 176 at [15] (Gray J); Stubberfield v R (2010) 106 SASR 91, [2010] SASC 9 at [43] (Gray, Sulan and David JJ).
In deciding whether to record a conviction, I am required to consider the benefit to the offender of exercising the discretion, with the public interest inherent in recording convictions:[10]
In deciding whether to impose a conviction, this Court should weigh the beneficial nature of the order to proceed without a conviction to the offender, with the public interest inherent in convictions being recorded. The tension between these factors or interests was highlighted by the Queensland Court of Criminal Appeal in Briese:[11]
...the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department...For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and courts need to be aware of this potential effect ...
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation ...
...
The express mention...of the nature of the offence as a factor to which the court must have regard in the exercise of the discretion whether or not to record a conviction suggests that there are certain types of offences which will call for the recoding of a conviction...A court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so called ‘victimless’ crime.
Observations to this effect have since been enunciated by a number of courts in different jurisdictions, including this Court.[12]
[10] Stubberfield v R (2010) 106 SASR 91, [2010] SASC 9 at [44] (Gray, Sulan and David JJ).
[11] R v Briese [1997] QCA 10, (1997) 92 A Crim R 75 at 79-81.
[12] Attorney-General v Smith [2002] TASSC 10 at [18] -[26]; Zefi v Police [2003] SASC 218 at [15]- [16]; Szep v Police [2003] SASC 144.

In Stubberfield, whilst it was stated that a court may be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so-called victimless crime, it must be borne in mind that the Court described the circumstances of that particular case as highly unusual. The defendant had used unreasonable force in self-defence in his work as a security agent. He had a letter from his employer stating in unequivocal terms that a conviction would lead the employer to seek his dismissal. He had a number of compelling character references attesting to the fact that the offending was out of character.
In Hodgins v Police,[13] the influence of a recorded conviction upon a defendant’s employment prospects was found to be a sufficiently good reason to not record a conviction. In Hodgins, the defendant also had no prior convictions related to violent offending and his offending caused no physical injury to the victim. However, in that case, a significant part of the appeal turned on the fact that the Magistrate failed to provide reasons for rejecting the submission that the matter should proceed without a conviction.[14]
[13] Hodgins v Police [2008] SASC 176.
[14] Ibid at [6]-[7] (Gray J).
Treatment of breaches of intervention orders by the courts
In this case, the nature of the offending requires particular consideration.
In R v Saunders,[15] the Court of Criminal Appeal considered an appeal against sentence for one count of a breach of an intervention order, one count of a breach of bail and one count of property damage. In assessing the appellant’s sole ground of appeal that the sentence was manifestly excessive, Stanley and Hinton JJ in separate judgments emphasised the importance of imposing punishment for contraventions of intervention orders.
[15] [2017] SASCFC 86.
Stanley J at [27]-[28] said:[16]
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection. If that protection is to be effective and orders of the court or conditions in bail agreements not to be mere scraps of paper, the court must impose punishments for the breach of those orders or agreements which will deter those who contravene the orders or agreements and others who might be minded to do so from offending in that way.
In my view, notwithstanding that physical violence was not inflicted on the victim of this offending, it must have been terrifying to be woken in the dead of night by the appellant banging on her window, in breach of an intervention order and the bail agreement, and then to have him smash the window when she refused to answer his summons. This was the very sort of menacing that the order and the condition of the appellant’s bail was intended to prevent. While, if the appellant’s conduct had resulted in physical injury being suffered by the victim, that would have aggravated the circumstances of the offending, neither the lack of physical harm to the victim, the appellant’s intoxication at the time, and his subsequent cooperation, renders the sentence imposed manifestly excessive.
(my emphasis and footnotes omitted)
[16] Ibid.
Hinton J at [43]-[44] said:[17]
Intervention orders comprise one component of the Government’s response to domestic violence in this State. In concluding his speech on the motion that the Intervention Orders (Prevention of Abuse) Bill be a read a second time the Attorney-General said:[18]
In enacting these reforms, Parliament will be sending a clear message that it will not tolerate the use of violence to control or intimidate another person, particularly in a domestic setting; that it recognises and abhors the lasting psychological and emotional damage to children from exposure to such violence; that it expects perpetrators to accept full responsibility for their violent behaviour; and that the paramount consideration is always the protection and future safety of the victims of abuse and the children who are exposed to it.
It must be borne in mind that the abuse which intervention orders are intended to protect against, can take many forms. Physical violence is but one. Emotional and psychological harm is often debilitating and equally often profoundly so. It is important to the maintenance of confidence in the protection that intervention orders are intended to provide that the courts treat any breach as very serious and impose sentences which reflect the contemptuous nature of a breach of a court imposed intervention order, and, most importantly, denounce, protect and deter.
(my emphasis and footnotes omitted)
[17] Ibid.
[18] South Australia, Parliamentary Debates, House of Assembly, 10 September 2009 at 3944.
It is clear from these statements that breaches of intervention orders are treated with a high level of seriousness to strongly deter reoffending and to maintain the effectiveness of these orders. It cannot be said that the nature of this offence lends itself to the court being more easily persuaded not to record a conviction.
I do not suggest that the cases themselves are comparable. In Saunders the intervention order had been imposed due to instances of domestic violence and the appellant possessed a significant criminal history which included a recent breach of an intervention order. Those circumstances do not arise here. The reference to Saunders is illuminating with respect to the approach to the intervention order scheme.
Application of the principles to Mr Joseph’s circumstances
The appellant’s submission that the offending was not serious because it was incidental to the appellant’s travel to the barber, and because the protected person was not embarrassed by the breach, must be rejected. Such a submission ignores the very point being made by the Magistrate when he spoke to the earlier finding that there is a reasonable suspicion that without the order the appellant would commit an act of abuse against the protected person. It overlooks the statements of this court in Saunders referred to above. In this case, the fact that it was incidental to another objective does not equate to it being inadvertent, as counsel for the appellant conceded. The appellant knew that he was within 100 metres of the protected person’s residence.
The Magistrate considered the personal and mitigating factors specific to the appellant such as his age, background, educational qualifications, employment and supportive partner.[19] His Honour acknowledged the appellant’s submissions that he possesses ‘no relevant prior convictions, there are no allegations of violence involved in the breach of the order, the breach was on the lower end of seriousness for offences of this kind, the breach was not deliberate and that in all the circumstances it is unlikely that [he] will commit a breach of the order in the future’.[20] Those submissions were acknowledged.
[19] Sentencing Remarks of Magistrate Alexandrides dated 2 July 2020 on page 2 at [12]-[13].
[20] Ibid on page 2 at [14].
In addition to this, it was submitted that there was an absence of any further breaches of the intervention order since the offence which supports a finding that there is a low likelihood of reoffending.[21] It was open to the sentencing magistrate to reject or place little weight upon the appellant’s submission that there was a low likelihood of reoffending based on the lack of any further breaches since the subject offending. There was no basis to find otherwise.
[21] Ibid on page 2 at [15].
The appellant complained that too much emphasis was placed on general deterrence but the reasons do not support that contention. The Magistrate’s remarks were balanced as between personal and general deterrence.
In any event, as the Chief Justice observed in Police v Chilton,[22] it is not an appealable error, in the House v The King[23] sense, to place reasonably more or reasonably less weight on one or more of the relevantly applicable sentencing considerations. It is the very nature of the exercise of a discretion that different judges will evaluate considerations relevant to the exercise of discretion in different ways.[24]
[22] (2014) 120 SASR 32, [2014] SASCFC 76.
[23] (1936) 55 CLR 499, 505.
[24] Police v Chilton (2014) 120 SASR 32, [2014] SASCFC 76 at [17]-[18] – see also Gronow v Gronow (1979) 144 CLR 513, 519-520.
The breach of an intervention order is an offence that entails a failure to comply with orders that have been issued to prevent the commission of an offence, based on conduct that has led an independent adjudicator to conclude that such an offence otherwise might occur. That failure to comply may have particular significance to a person or body considering whether to entrust the appellant with functions or responsibilities. The conviction enables that exercise to be undertaken and this provides a further reason for the decision to decline to record a conviction to be carefully considered. The reasons of the Magistrate reveal that this consideration was carefully undertaken and no error has been demonstrated.
Orders
I make the following orders:
1The time for bringing the appeal is extended.
2The appeal is dismissed.
3Costs in the sum of $500 are awarded to the respondent.