KASIM v Police - [2006] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KASIM v POLICE
Judgment of The Honourable Justice Bleby
23 February 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence – Appellant found guilty by Magistrate of one count of indecent assault contrary to s 56 Criminal Law Consolidation Act 1935 (SA) – Sentenced to eight months imprisonment – Sentence not suspended – Whether sentence manifestly excessive – Absence of any psychiatric, psychologist’s or pre-sentence report – No previous convictions of appellant – Whether Magistrate took all relevant matters into account – Whether Magistrate erred in not suspending sentence – Whether demonstrable error or failure on part of Magistrate on material before him – Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 8, s 10, s 11, s 38, referred to.
House v The King (1936) 55 CLR 499; The Queen v Morse (1979) 23 SASR 98; R v Wilton (1981) 28 SASR 362; Kowald v Hoile (No 2) (1976) 14 SASR 314, applied.
Henderson v Police [2002] SASC 273, distinguished.
Gavin v The Queen (1992) 6 WAR 195; Wood v Samuels (1974) 8 SASR 465, considered.

KASIM v POLICE
[2006] SASC 50
Magistrates Appeal: Criminal
BLEBY J:
Introduction

This is an appeal against sentence. The appellant was charged with the offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The offence occurred on 15 June 2004. The appellant pleaded not guilty and the matter proceeded to trial before a Magistrate. The Magistrate found the appellant guilty of the offence. He was convicted and sentenced on 1 December 2005 to eight months’ imprisonment. The sentence was not suspended.
The appellant appeals on the ground that the sentence was manifestly excessive and that the Magistrate erred in not suspending the sentence.
The circumstances of the offence
The victim was a female natural therapist who was qualified to perform remedial massage. She conducted her own practice in an Adelaide suburb. It was at her rooms that the assault occurred.
The Magistrate largely accepted the evidence of the victim. The appellant, posing as a man called Don Edwards, made an appointment for a massage. He presented himself at the appointed time. The appointment was for one hour. He complained of lower back pain. He was taken to a massage room and was told to remove all his clothing except for his underpants, and to lie face down on the massage table and to cover his body with towels provided. The victim left the room while he undressed.
As the massage commenced, the victim realised that the appellant was naked. Given his complaint about lower back pain, she worked on his back and lower legs. She purposely avoided massaging his thighs because she knew that he was not wearing underwear.
The massage lasted for about 50 minutes. The appellant, having turned over, asked the victim to massage his shoulders. She began to do so but the appellant grabbed her by the wrist, pushed the towels away with his free hand and asked her to massage him all over. In the circumstances, it was an unmistakeable request for a sexual massage. The victim responded by saying that she did not do sexual massages and asked him to let go of her hand. She tried to pull herself away but the appellant got up from the table, naked, and prevented her from leaving the room. He placed his body between the victim and the door, took her in a bear hug and kissed her while she made unsuccessful attempts to push him away. He then forcibly placed her on the massage table and lay on top of her. He continued to kiss her and pulled up her T-shirt and bra and touched her breasts with his hand and mouth before ejaculating onto her jeans.
The Magistrate’s reasons
In sentencing the appellant, the Magistrate had before him a detailed victim impact statement. The assault has caused the victim much anxiety, nervousness, stress, tension and has caused her to develop substantial distrust of men and of many male patients. She ceased doing massages and will not see male clients unless referred. This has caused a substantial loss of income from her practice.
The Magistrate noted the relevant matters required to be taken into account in accordance with s 10 of the Criminal Law (Sentencing) Act 1988. He noted that the appellant had shown no contrition for the offence and that he was not entitled to any credit for pleading guilty. The Magistrate described the offence as a “nasty assault”. He said:
To simply impose his preference by the use of force upon (the victim) a vulnerable, sensitive, moral professional woman, was quite outrageous. (The victim) was vulnerable both emotionally and physically. She was alone with Mr Kasim. She thought that she was safe. She was not. Any idea that she had chosen a profession in which “misunderstandings” were to be expected would be unworthy and further demeaning to her. She suffered considerable damage both emotionally, physically and financially.”
The appellant came to Australia from Somalia in 1999. He is aged 35. He had been in regular employment. He has no convictions for any offence. The Magistrate took those matters into account. He considered that, of all the relevant considerations, the most influential was “the need to protect not only (the victim) but other emotionally and physically vulnerable women in both professional and private circumstances from criminal behaviour that threatens them physically and emotionally, that invades their very soul.” That was a relevant matter to take into account.[1]
[1] Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(i).
The Magistrate specifically referred to s 11 of the Criminal Law (Sentencing) Act which requires that a sentence of imprisonment may only be imposed if, in the opinion of the Court, certain criteria have been met. He referred to the criterion that, “any other sentence would be inappropriate having regard to the gravity and circumstances of the offence”. The Magistrate’s conclusion indicated that he was of that opinion. That opinion was justified by the gravity of the offence. Counsel for the appellant on the appeal did not argue that a sentence of imprisonment was inappropriate.
Material not before the Magistrate
The appellant was represented by counsel before the Magistrate, both on the plea of not guilty and for the purpose of sentencing. Neither counsel for the appellant nor the prosecutor requested the court to order a pre-sentence report on the appellant pursuant to s 8 of the Criminal Law (Sentencing) Act 1988. The appellant did not seek the opportunity to obtain a psychiatric or psychologist’s report.
It must be observed that this was a case in which one such report would have been of considerable assistance to the Magistrate in sentencing the appellant, and possibly of assistance to the appellant himself. For a mature adult with no previous convictions, unusual and unexplained behaviour of this nature required some explanation. The Magistrate was deprived of any assistance in assessing the appellant’s prospects of rehabilitation and how best that might be achieved. The mere fact that the appellant had no previous convictions and was in current employment was little guide to that.
The Magistrate was not obliged to order any report, particularly as the appellant was represented. The failure to do so can seldom be regarded as a miscarriage, as counsel has an obligation to ensure that all the relevant material is placed before the court.[2] This Court can only consider the appeal, in so far as it concerns the personal circumstances of the appellant, on the basis of material placed before the Magistrate by the appellant.
[2] Gavin v The Queen (1992) 6 WAR 195.
The sentence of imprisonment
The maximum penalty for this offence is eight years’ imprisonment. The offence covers a broad range of offending, and there can be no appropriate standard or common penalty. It was a serious offence, the appellant taking advantage of a less physically strong woman in the privacy of her professional rooms where he had been permitted to enter as a client of the victim. While naked, he forcefully prevented her from leaving the room, followed by the grossly indecent assault. General and personal deterrence were both important factors in the sentence.
Notwithstanding that this was a first offence, it was a serious offence with substantial adverse consequences to the victim. A sentence of imprisonment of this order was within the range of the sentencing options properly available to the Magistrate. I can detect no error of fact or law made by the Magistrate or any failure to take into account any relevant consideration in exercising his discretion in fixing the sentence he did. An appellate court can only interfere with the exercise of that discretion if the sentence was plainly unreasonable, unjust or if there are other grounds for holding that the Magistrate committed an error of fact or law or failed to take into account a material consideration.[3]
[3] House v The King (1936) 55 CLR 499; The Queen v Morse (1979) 23 SASR 98.
While comparisons with other cases are not always helpful, I do not consider that the appellant can derive any comfort on the length of sentence from Henderson v Police[4] which was relied on but which was a different type of assault in different circumstances. I regard this assault as much more serious.
[4] [2002] SASC 273.
While, for a first offence it might be regarded as a severe sentence, this Court cannot interfere even if it were to consider the sentence more severe than this Court itself would have imposed.[5]
[5] R v Wilton (1981) 28 SASR 362 at 363.
Suspension of the sentence
As to whether the sentence should have been suspended, resolution of that question is more difficult. The power to suspend the sentence is conferred by s 38 of the Criminal Law (Sentencing) Act. The Court may do so “if it thinks that good reason exists to do so”. As Walters J said in Wood v Samuels[6]:
In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court’s clemency.
[6] (1974) 8 SASR 465 at 468.
The difficulty in this case is to know whether, if at all, the appellant would benefit from an exercise of that type of clemency. No remorse has been shown. The Magistrate had no information before him which would assist him in concluding that the appellant’s rehabilitation would benefit from that type of clemency. The only relevant factors known to the Court were that this was a first offence and that the appellant was in regular employment.
In Kowald v Hoile (No 2)[7] Zelling J identified three questions that needed to be asked when considering the question of suspension:
(a)How do the extenuating circumstances fit into the pattern and context of the offence viewed as a whole?
(b)Is this man likely to respond to a non-custodial sentence so as to reform and rehabilitate his life style or is he merely seeking by the use of exercises and forensic eloquence to escape the due reward of his misdeeds?
(c)Does the community’s need and also its duty to suppress an active social evil whether that need and duty be expressed legislatively by Parliament in statutory form or factually by the prevalence of the offence, the difficulty of its detection, and the serious consequences to the community of its commission, outweigh the Judge’s duty to be as compassionate as the circumstances admit, in dealing with any person appearing before him who has been convicted of a criminal offence?
[7] (1976) 14 SASR 314 at 319-320.
As to the first question, as I have already mentioned, the only extenuating circumstances put before the Magistrate were the fact that this was the appellant’s first offence and that the appellant was currently in employment. However, as I have also said, the offence was a serious breach of the criminal law, having a devastating affect on the victim. Deterrence in this case is of major importance.
As to the second question, there was no evidence before the Magistrate that this was a one-off offence that was unlikely to be repeated. There was no evidence as to the appellant’s prospects of rehabilitation. It would have been helpful to the Magistrate if there were. In the absence of such evidence, the appellant cannot expect a finding that his rehabilitation would be advanced by a suspended sentence. It is not possible to draw such inference merely from the fact that this was a first offence.
As to the third question, the tempering of justice with mercy must always be considered in appropriate circumstances. However, the consequences of this offence are serious both to the victim and to the community. Women in vulnerable circumstances are entitled to such protection as the law can give them. There is nothing about the circumstances of this offence that would require the exercise of that degree of compassion.
Nevertheless, I remain troubled that this is a first offence. However, I do not consider that that in itself is sufficient, for an offence of this nature, to conclude that good reason exists for suspending the sentence, that being the test required by s 38 of the Criminal Law (Sentencing) Act.
For all these reasons I cannot conclude that the Magistrate erred in failing to suspend the sentence. It follows that the appeal must be dismissed.