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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: KASIM v Police [2006] SASC 50
Case: [2006] SASC 50
Decision Date: 23 February 2006

CaseChat Overview and Summary

The appellant, KASIM, appealed against his sentence after being found guilty of one count of indecent assault by a Magistrate in South Australia. The court was tasked with determining whether the sentence of eight months imprisonment, which was not suspended, was manifestly excessive. The appellant argued that the absence of a psychiatric, psychologist's, or pre-sentence report, along with his lack of previous convictions, meant the sentence was too severe. The appellant also contended that the Magistrate had failed to consider all relevant matters and erred in not suspending the sentence. The central legal issue was whether the Magistrate made a demonstrable error or failed in his duties when considering the material before him.

The court examined the grounds for interference with the sentence, focusing on whether the sentence was manifestly excessive and if the Magistrate failed to consider all relevant matters. It considered the absence of a psychiatric or pre-sentence report and the appellant's clean criminal record. However, the court held that the Magistrate had exercised his discretion and taken into account all relevant matters, including the nature and circumstances of the offence, the appellant's culpability, and the need to deter the appellant and others from committing similar offences. The court found no demonstrable error or failure on the part of the Magistrate that warranted interference with the sentence.

Consequently, the appeal against the sentence was dismissed. The court upheld the original sentence of eight months imprisonment, which was not to be suspended. The decision underscored the importance of the Magistrate's discretion and the need for a sentence that appropriately reflects the seriousness of the offence and the need for deterrence.

Orders