LAUNDY v Police - [2005] SASC 325

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAUNDY v POLICE
Judgment of The Honourable Justice White
26 August 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to the offence of assault of a security officer - convicted and fined $750 - whether Magistrate erred in refusing to exercise discretion to impose fine without recording a conviction - whether Magistrate erred in weight given to seriousness of the offending - whether Magistrate failed to have sufficient regard to appellant's personal circumstances - held no error by Magistrate demonstrated - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), s 39; Criminal Law (Sentencing) Act 1988 (SA), s 16, referred to.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2002) 202 CLR 321; Wessling v Police [2004] SASC 51, (2004) 88 SASR 57; Yardley v Betts (1979) 22 SASR 108, applied.

LAUNDY v POLICE
[2005] SASC 325
Magistrates Appeal

WHITE J: On 7 June 2005, the appellant and a co-offender each pleaded guilty to the offence of assault.[1] In each case, a conviction was entered, and a fine of $750 imposed. The appellant (but not the co-offender) appeals against sentence. He complains in particular of the Magistrate’s refusal to exercise the discretion invested in him by s 16 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) to impose the fine without recording a conviction.
[1] Criminal Law Consolidation Act, s 39.
Circumstances of the Offending
In the early hours of 26 January 2005, the appellant was present with others at the Lonsdale Hotel. He had been drinking there for some time and was intoxicated.
The victim of the assault was a security officer employed by the Hotel. He became concerned at the increasing rowdiness of the group of which the appellant formed part. Accordingly he instructed bar staff to refuse the service of further alcohol to them. This led to one member of the group becoming aggressive towards the security officer and engaging in menacing conduct towards him. The victim, being fearful of being assaulted, struck that person with a large torch. This then led to an assault on the victim by the appellant, his co-offender and others. The victim was punched many times on the head and upper body. At one stage during the fight, he fell to the floor landing on a glass which broke causing a deep laceration to his upper right leg. However, it was not alleged that the blows struck by the appellant or the co‑offender had caused any injury, nor that they were to be held responsible for the lacerations suffered by the victim.
The appellant then left the Hotel. Within a day or so he learned that there was a police investigation into the incident. About two days after the incident, the appellant attended voluntarily at the Christies Beach Police Station and admitted his participation in the assault. He also took with him the clothes he was wearing at the time of the assault, as he was aware that the police had seized the clothes of others who had been involved, apparently as part of a forensic investigation. The appellant made full admissions to the police as to his involvement. That led to him being charged with the offence for which he was sentenced by the Magistrate.
The Submissions to the Magistrate
It was submitted to the Magistrate that both the appellant and his co-offender should be dealt with pursuant to s 16 of the Sentencing Act. That is to say, that the Court should impose a penalty of a fine but without recording a conviction. The appellant’s counsel emphasised to the Magistrate the fact that he had voluntarily gone to the police station and made full admissions, that he was unemployed at the time of the offending and that the recording of a conviction may have a detrimental effect on his prospects of obtaining further employment. The appellant was aged 29 at the time of the offending. No prior offending was alleged by the prosecutor.
The Magistrate’s Decision
Having referred to the circumstances of the offending the Magistrate said:
Mr Colthorpe, who appears for both defendants, describes their involvement as somewhat similar. They simply lost control when they saw their friend struck by the security officer. They both admitted throwing punches at him but neither were sure whether those punches contacted, but what they did was to involve themselves and others in a joint attack on this person who was doing no more than performing his employment duties. They took the view he was being over-aggressive. It was not for them to make that determination.
Normally in these sorts of situations when people consume alcohol, become violent and assault members of the community, immediate imprisonment is warranted. There is too much violence in the community, particularly in pubs and other places where alcohol is consumed. Had it not been for Mr Colthorpe’s submissions I would have imprisoned them for two months at least. However, in view of their personal circumstances and Mr Colthorpe’s submissions they deserve lenience on this one occasion. Notwithstanding the submission that they should not be convicted, they are convicted and must each pay a fine of $750 together with [court fees and costs].
Section 16 of the Sentencing Act
Section 16 provides as follows:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, 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,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
Section 16 presupposes that in the ordinary case a conviction will be recorded but allows the court, in the exercise of its discretion, to refrain from recording a conviction when there is “good reason” for doing so. The matters specified in paragraphs (a) and (b) are preconditions for the exercise of the discretion. The court must be satisfied that the defendant is unlikely to commit the offence again and that, having regard to at least one of the matters specified in paragraph (b), good reason exists for not recording a conviction. It is clear enough that the Magistrate was not satisfied that good reason for not imposing a conviction did exist. It is also clear enough that he was particularly influenced to that conclusion by the serious nature of the appellant’s conduct.
The approach of this Court when asked to review the exercise of a discretion such as that vested by s 16 is well-known. The Court interferes with the exercise of that discretion only when it is satisfied that the sentencing court has acted upon some wrong principle, or has allowed irrelevant considerations to influence it, or has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly.[2]
[2]House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2002) 202 CLR 321 at 324-5 [3]-[4]; Wessling v Police [2004] SASC 51 at [19], (2004) 88 SASR 57 at 60-1.
Grounds of Appeal
The Notice of Appeal contains the following grounds:
1.When considering whether to impose a conviction the learned Magistrate failed to have regard to the good reasons that existed for not recording a conviction and accordingly failed to exercise his discretion in favour of [the appellant].
2.The learned Magistrate gave insufficient weight to [the appellant’s] age, lack of criminal antecedents and the detrimental [e]ffects of a conviction on [the appellant’s] future employment and long term development.
3.The exercise of the sentencing discretion miscarried as the learned [M]agistrate allowed the seriousness of the offending to be given too much weight.
In my opinion, the Magistrate was well justified in regarding the offending as serious. It was acknowledged on appeal that the appellant was the first of several assailants who assaulted the victim. The circumstance of this occurring after the security officer had struck another member of the group with his torch helps explain his actions but does not excuse it. The appellant was present and observed the menacing conduct of that other person towards the security officer. He knew what it was that had led the security officer to react in the way in which he did. Further, being the first member of the group to strike the security officer, his conduct may well have had the effect of inciting others. Although it is to the appellant’s credit that he desisted from his assault on the security officer very quickly, it was the fact that he was part of a group attack on him.
To some extent, those employed in security work in hotels and licensed premises are vulnerable to assaults by drunken and belligerent patrons. Their employment duties often require them to intervene with such persons in circumstances in which their intervention will be viewed with resentment. Security officers should carry out their duties with restraint and consideration for those affected by their conduct but they are entitled to discharge their responsibilities without violence or risk of injury to themselves. Ordinarily, sentences imposed for assaults on such persons should, in my opinion, take into account the need to deter the offender and others who may be minded to engage in some form of violent challenge to security officers.
The Magistrate considered that where violence and assaults occur following consumption of alcohol, immediate imprisonment is normally warranted. I would guard against endorsing such a general view. The circumstances in which offending of this type may occur can vary greatly. There should be no presumption one way or the other as to whether imprisonment is the appropriate way of dealing with any particular case.[3] This was recognised by the Magistrate in the present case. He took account expressly of the appellant’s personal circumstances, and of his conduct in relation to the assault, in refraining from sentencing him (and the co-offender) to imprisonment.
[3] Yardley v Betts (1979) 22 SASR 108 at 113.
Mr Colthorpe, who appeared for the appellant, submitted that the Magistrate must have allowed himself, unconsciously, to have been influenced by the fact that the appellant (and the co-offender) had initially been charged with the more serious offence of assault occasioning actual bodily harm. There is no indication in the Magistrate’s reasons that that had occurred. The Magistrate noted expressly the concession that the punches of the appellant had not caused any injury and that he was not to be held responsible for the injury to the victim’s leg.
Next it was submitted that the Magistrate had erred in treating the assault by the appellant as part of a “joint attack” by the group on the victim. I do not consider that the Magistrate was in error in this respect. Although the appellant did desist from the assault, there was at least a time when he was punching the security officer at the same time as others. As already noted, his conduct may also have had the effect of inciting others to participate in the assault.
Finally, it was submitted that the Magistrate had failed to have sufficient regard to the appellant’s personal circumstances including his voluntary admission to the police of his involvement, his cooperation, and the effect on his prospects of obtaining employment in the future of a conviction being recorded against him. In my opinion, this complaint is not made out. These were the matters put by Mr Colthorpe to the Magistrate. The Magistrate said expressly that were it not for those submissions a more severe penalty would have been imposed. Thus, account was taken of the considerations personal to the appellant. The Magistrate’s decision has not been shown to be in error in this respect.
In my opinion, the appellant has not demonstrated any error by the Magistrate which would warrant interference with his exercise of the sentencing discretion.
For these reasons my opinion is that this appeal should be dismissed.