LUHA v Police

Case [2012] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

LUHA v POLICE

[2012] SASC 17

Judgment of The Honourable Justice Blue

10 February 2012

CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

Appellant found guilty of indecent assault - sentenced to 9 months imprisonment - 6 months to be suspended.

Appeal against conviction - whether verdict unsafe or unsatisfactory - whether Magistrate correctly characterised and used evidence as "complaint evidence" - whether Magistrate correctly directed himself as to alternative explanations and gave correct weight to evidence of complainant's distress - whether complainant's evidence unsatisfactory as incomplete or inconsistent - whether Magistrate needed to give reasons for rejecting defendant's evidence.

Held: Appeal against conviction dismissed. Complaint evidence was admissible despite not referring to conduct of a sexual nature - Magistrate considered and reasonably rejected alternative explanations for complainant's distress - Magistrate did not give inappropriate weight to distress evidence - Magistrate not required to give additional reasons for rejecting defendant's evidence.

Appeal against sentence - whether Magistrate correctly approached question of suspension or full suspension - whether Magistrate properly weighed factors when considering suspension.

Held: Appeal against sentence allowed. Magistrate did not identify why sentence not fully suspended - Magistrate did not give proper weight to the circumstances favouring suspension. Upon re-sentencing: sentence of 9 months imprisonment fully suspended upon defendant entering into a good behaviour bond for 2 years.

Criminal Law Consolidation Act 1935 (SA) s 56(1); Criminal Law (Sentencing) Act 1988 (SA) ss 38(2)(a), s 11; Evidence Act 1929 (SA), referred to.
De B v De B [1950] VLR 242; Greig v Police (1999) 204 LSJS 383; Ienco v Kraft (1990) 53 SASR 40; Jamieson v Police [2004] SASC 335; Kropinyeri v Police [2005] SASC 385; Landers v Police (2002) 131 A Crim R 59; R v Beard [2004] SASC 411; R v Braye-Jones [1966] Qd R 295; R v Doecke (1999) 205 LSJS 304; R v Flannery [1969] VR 586; R v Lillyman [1896] 2 QB 167; R v M, H (2007) 168 A Crim R; R v Manwaring [1983] 2 NSWLR 82; R v Marikar [2010] SASCFC 36; R v Palliaer (1984) 35 SASR 569; R v Redpath (1962) 46 Cr App R 319; R v Spyrou [2008] SASC 209; R v Stevens [2008] SASC 170; Suresh v The Queen 72 ALJR 769, considered.

LUHA v POLICE
[2012] SASC 17

Magistrates Appeal:  Criminal

  1. BLUE J.    The appellant/defendant was convicted by a Magistrate of indecent assault.[1]  He was sentenced to nine months imprisonment which was to be suspended[2] after serving three months upon his entering into…

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LUHA v Police [2012] SASC 17
Case
[2012] SASC 17
Decision Date

CaseChat Overview and Summary

The defendant in this case appealed against both their conviction and sentence. The conviction was for indecent assault, with a sentence of nine months imprisonment, six months of which were to be suspended. The appeal against conviction centred on whether the verdict was unsafe or unsatisfactory, with particular focus on whether the Magistrate correctly characterised and used the evidence as "complaint evidence." The appeal against sentence challenged whether the Magistrate correctly approached the question of suspension or full suspension and whether they properly weighed the factors when considering suspension.

The court found that the appeal against conviction should be dismissed. The complaint evidence was admissible despite not referring to conduct of a sexual nature, and the Magistrate had considered and reasonably rejected alternative explanations for the complainant's distress. The Magistrate did not give inappropriate weight to the distress evidence, nor was required to provide additional reasons for rejecting the defendant's evidence. Regarding the appeal against sentence, the court held that the Magistrate did not identify why the sentence was not fully suspended and did not give proper weight to the circumstances favouring suspension. The appeal against sentence was therefore allowed, and upon re-sentencing, the sentence of nine months imprisonment was fully suspended upon the defendant entering into a good behaviour bond for two years.

Orders

Orders of the court

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Background

Background to the litigation

The defendant appeals against the conviction on the ground that the verdict is unsafe or unsatisfactory and against the sentence on the ground that the Magistrate erred in not fully suspending the term of imprisonment.Background facts The defendant conducts a shop in the city. It sells food as well as meals which can be consumed at tables in the shop. Prior to 25 May 2010, the complainant had visited the shop on several occasions over the previous two years to buy food. On 25 May 2010, the complainant bought a meal. While she was eating her meal, the defendant discussed yoga and chakras with her. The other customers in the shop finished their meals. The defendant let them out through the external door. There was a dispute on the evidence as to whether he locked the door at that point. The complainant said that the door was locked when she ultimately left the shop and must have been locked by the defendant when he let the other customers out. The defendant denied that the door was locked at any point, including when the complainant left the shop. The defendant offered to show the complainant slides concerning chakras on his laptop. This was located in an office area forming part of the shop. She accepted the offer and they watched the slideshow. The versions of the complainant and the defendant diverged as to what happened next. The complainant gave evidence as follows:1.The defendant hugged her and said that she needed a massage. She told him that she had to leave to be somewhere. He responded saying that they had to meditate.2.The defendant pushed her gently by the shoulders to sit down on an air mattress/couch. She reluctantly cooperated. He ran his hand from her toes over her thigh and over her vagina. She told him that she did not want him to do that, that she was not attracted to men, that she had been hurt when she was younger and that she had a girlfriend.3.The defendant then untucked her top and ran his hands over her breasts lightly. She told him again that she was uncomfortable and had to be somewhere. She shielded her breasts with her hands. He rubbed her neck with oil. He massaged her breasts. She described symptoms of shock and feeling overwhelmed.4.The complainant said that she had to go. He said that he had done nothing wrong and that was how he massaged women, which he had done before. He turned on the lights and unlocked the door to the shop and she left. The defendant gave evidence denying that he locked the door when the other customers left, and denying that he unlocked it when the complainant left. He substantially agreed with the complainant’s account up to the completion of the slideshow. He also agreed that he massaged her neck with oil at one point, but otherwise denied that he touched her at all. The defendant also gave evidence of discussions between the complainant and himself prior to the point at which she sat on the air mattress. He said that she appeared to be stressed. She told him that she had many things going on in her past, in her study life and in her partner’s life, and this led to the discussion about yoga and meditation. She “was telling about the mother was not good background, coming from the childhood is painful and some abuse things happening, psychic… in the mind”. She referred to her girlfriend and said “they have some… each other so now she tried to call her and then tried to phone her”. The complainant has denied most of these topics of conversation when put to her in cross-examination.

Evidence

Evidence Before The Court

The Magistrate did not refer in his reasons to the omission of the phone call from the witness statement, and it is not clear that any submission was made to him in closing address concerning it. In any event, given the circumstances identified above, the omission of the reference to the telephone call in the written statement was of no consequence in terms of the complainant’s credibility. Inconsistency in complainant’s evidence concerning personal history The defendant on appeal identifies four matters which he contends must have been told to him by the complainant (for him to have been able to give evidence of them) and which were in fact true but which the complainant denied telling him. Those matters are:1.the complainant’s mother did not have a good background and had been subject to some abuse;2.the complainant herself had a difficult childhood (“pathetic”, “painful”);3.the complainant herself had suffered some abuse in childhood;4.the complainant was currently having difficulties with her girlfriend. In relation to each of these four matters, not all of the premises identified in and necessary for the defendant’s contention were established on the evidence. 1.In relation to the complainant’s mother (the first matter), while the complainant gave evidence in cross-examination that in fact her mother had become disabled and her parents had divorced when she was a child, she did not give evidence that in fact her mother had had a difficult childhood nor that her mother had been abused as a child. In any event, the defendant’s evidence as to what he was told by her about her mother was very vague, merely referring to her childhood being painful and involving abuse.2.In relation to the complainant’s own childhood (the second and third matters), the complainant gave evidence-in-chief that she told the defendant that she was not attracted to men and that she had been hurt when she was younger. She gave evidence that in fact during Year 11 a boy in her class at school had started to have intercourse with her while she was unconscious, but the defendant did not give evidence that she told him of this. Nor was any suggestion put to her in cross-examination that she told the defendant that she herself had been abused (as opposed to her mother). To the extent that the defendant gave evidence that the complainant told him that she had had a difficult childhood or had been abused (and his evidence as to this was extremely vague and ambiguous), this is consistent with the complainant’s own evidence-in-chief that she told him that she had been hurt when she was younger.3.In relation to the difficulties between the complainant and her girlfriend (the fourth matter), the defendant’s evidence was that he knew prior to the night in question of the existence of her girlfriend because he had seen them in the shop together. The complainant denied that in fact she was experiencing any difficulties with her girlfriend on the night in question.

Decision

Reasons for decision

BLUE J
Those observations apply equally to the present case. The defendant contends that there are additional factors in this case, namely the allegedly incomplete and inconsistent evidence of the complainant together with the other matters addressed above, which necessitated the Magistrate giving reasons why he rejected the defendant’s account. I have addressed each of those matters and concluded that the Magistrate did not err in any of those respects. For the same reasons as in Beard,[20] the Magistrate did not err in giving his reasons for accepting the complainant’s account beyond reasonable doubt and rejecting the defendant’s contrary account. [20] [2004] SASC 411.Conclusion The defendant has not demonstrated that the conviction is unsafe or unsatisfactory. The appeal against conviction should be dismissed.Appeal against sentence The defendant does not appeal against the head sentence of nine months imprisonment. The defendant appeals against the failure of the Magistrate to fully suspend that sentence of imprisonment (as opposed to partially suspending it after the defendant has served three months imprisonment). It is clearly established that a sentencing court must consider and determine as a first step whether a period and if so what period of imprisonment ought to be imposed (taking into account, inter alia, s 11 of the Sentencing Act) before proceeding as a second step to consider whether or not to suspend (fully or partially) the sentence of imprisonment already determined.[21][21] R v Palliaer (1984) 35 SASR 569 at 571-572 per Mitchell ACJ; R v Doecke 205 LSJS 304 at 307 per Mullighan J (Doyle CJ and Perry J agreeing) [1999] SASC 503; (1999) Landers v Police (2002) 131 A Crim R 59, [2002] SASC 185 per Gray J; R v Stevens [2008] SASC 170 at [22] per Duggan J (Doyle CJ and Anderson J agreeing). In exercising the discretion whether or not to suspend a sentence, a sentencing court must consider all of the relevant circumstances including the objective features of the offence and the personal circumstances of the defendant.[22][22] R v Stevens [2008] SASC 170 at [22]-[26] per Duggan J (Doyle CJ and Anderson J agreeing); R v Spryou [2008] SASC 209 at [25]-[27] per Doyle CJ (Duggan and Anderson JJ agreeing). In his reasons for judgment, the Magistrate conflated the question whether or not to impose a term of imprisonment and the length of imprisonment with the question whether or not to suspend the term of imprisonment into a single step. This is apparent from the fact that he concluded that a custodial sentence was warranted before fixing the term of imprisonment coupled with the fact that he gave no reasons why a full suspension (as opposed to a partial suspension) was not appropriate. The danger inherent in this approach is that the Magistrate may not have properly weighed (as he was obliged to do) the defendant’s personal circumstances against the objective features of the offence itself. Prima facie, the fact that the defendant had attained the age of 41 without any prior convictions whatsoever and had an excellent character cried out for a careful consideration whether it was appropriate to fully suspend the sentence. Given the approach of the Magistrate, there is a real danger that he overlooked the weight of the defendant’s personal circumstances in determining whether or not to fully suspend the sentence. In the particular circumstances of the case, the Magistrate gave no reason why the factors which lead him to suspend six months of the sentence of nine months did not lead him to suspend the full nine months.[23][23] Compare Jamieson v Police [2004] SASC 335 at [18] per White J and Kropinyeri v Police [2005] SASC 385 at [10]-[13] per Duggan J.

Ratio Decidendi

Legal Principle Established

Established by: BLUE J

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