LUHA v Police - [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

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 a good behaviour bond for the balance of the term of imprisonment.
[1] Criminal Law Consolidation Act 1935 (SA) s 56(1).
[2] Pursuant to s 38(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
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.
Some time after arriving home, the complainant telephoned her sister. Her sister gave evidence that the complainant was distraught, in tears and crying so much that it was hard to hear her words. All she could make out was the statement “why do people hurt people?” and “something about a door or a lock or something. Something about a door and I, kind of, just knew that she was in trouble. Hurt.” As a result of that conversation, the complainant’s sister telephoned their father, who telephoned the police. The police interviewed the complainant late that night.
Appeal against conviction
The defendant appeals against his conviction on the ground that it is unsafe or unsatisfactory. The defendant makes the following contentions on appeal:
1.the complainant’s recollection of the events of the evening was incomplete because there was no mention of the telephone call to her sister in her written statement to police, after she had spent hours with police making her statement;
2.the fact that the complainant denied informing the defendant of certain matters concerning her mother’s and her own personal history, of which the defendant gave evidence and which he could not have known if she had not told him that evening, so affected the credibility of the complainant as to make acceptance beyond reasonable doubt of her version over the defendant’s version impossible;
3.the Magistrate erred in finding that the evidence of the complainant’s sister was to the effect that the complainant said “something about being locked in” and, in any event, the Magistrate erred by using the statements to the complainant’s sister as “complaint evidence” when no reference was made in the conversation to any sexual matters;
4.the Magistrate erred as to the distress evidence in failing to direct himself as to, and in failing to consider, alternative possible causes of distress and failed to satisfy himself that alternative explanations for the distress had been excluded;
5.the Magistrate should have directed himself that very limited weight should be given to the evidence of distress given the fact that it was only observed by the complainant’s sister over the telephone and, in any event, because distress evidence should only be given very limited weight;
6.the Magistrate erred in giving no reason why he rejected the defendant’s evidence (in the absence of any contradictions or identified unsatisfactory aspects of his evidence), and in particular ought to have addressed why he did so given the incompleteness and inconsistencies in the complainant’s evidence and the weight which he gave to the distress evidence referred to above.
Incomplete recollection of complainant
The defendant does not dispute the objective fact that the complainant telephoned her sister on the night in question (in light of the evidence given by the complainant’s sister that that occurred).
The complainant gave evidence in cross-examination that she mentioned to the police on the night the fact that she had telephoned her sister, but the police chose not to include it in the witness statement which they prepared and which she signed that night. She was asked in cross-examination whether she had pointed out to the police that they had missed out the bit about ringing her sister. She said “No, I had just spent hours going through what had happened and all I wanted was to see my dad. It was the least of my concerns.” The topic was not further pursued in cross‑examination.
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.
Accordingly, the defendant’s contention that inconsistencies in the complainant’s evidence were established in these ways is not sustained.
Evidence of complaint
The defendant contends that the Magistrate erred in characterising the evidence of the complainant’s sister as being that the complainant said “something about being locked in”.
The defendant contends that it was impermissible for the Magistrate for this purpose to have regard to the complainant’s own evidence that she was locked in. I agree that, at this point in his judgment, the Magistrate was referring to evidence independently of the evidence of the complainant and accordingly could not have had regard to the complainant’s own evidence.
As to the complainant’s sister’s evidence standing alone, she said that it was difficult for her to make out the words used by the complainant because she was crying so much and was distraught. She said that the first thing her sister said was “Why do people hurt people”. She said that all she could make out was “something about a door or a lock or something”. While the complainant’s sister used the disjunctive word “or”, she used the word “lock” in conjunction with a door and an unlocked door would not apparently be significant. These matters indicate that, on her own evidence, the complainant’s sister was being told effectively that the complainant had somehow been locked in.
The defendant contends in any event that what was said by the complainant to her sister was incapable of constituting evidence of a “complaint” as a matter of law within the meaning of the doctrine permitting the reception of “complaint evidence”.
In Suresh v The Queen,[3] Gaudron and Gummow JJ said:
Evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. It is admissible because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false … it is admitted not as evidence of the facts in issue, but as evidence of consistency which buttresses the credit of the complainant.
(Footnotes omitted)
[3] (1998) 72 ALJR 769 at [4]; [1998] HCA 23.
In R v Manwaring,[4] Myles J (Street CJ agreeing) said:
The admissibility of evidence of recent complaint in cases of sexual assault is an anomaly in the law of evidence. It has its origins in the attitude taken in earlier times that a woman raped should be expected to raise a hue and cry, so that the absence of hue and cry was regarded as a matter appropriate for the defence to put to the jury as reflecting against the credibility of the victim ... In order to anticipate and forestall such an argument on the part of the defence, the prosecution is permitted to call evidence of recent complaint, that is complaint at the earliest reasonable opportunity after the alleged offence. The effect of evidence of recent complaint is limited to bolstering the credit of the victim as a witness and the making of recent complaint is not to be regarded as evidence of lack of consent nor as constituting corroboration of the evidence of the complainant.
[4] [1983] 2 NSWLR 82 at 90.
The defendant contends that, if the complaint does not itself refer to conduct comprising a sexual offence, it is not admissible as evidence of prior complaint pursuant to the doctrine. He cites De B v De B,[5] R v Braye-Jones[6] and R v Manwaring.[7]
[5] [1950] VLR 242.
[6] [1966] Qd R 295.
[7] [1983] 2 NSWLR 82.
In De B v De B,[8] a wife petitioned for dissolution of marriage on the ground of sodomy, which was denied by the husband. The wife sought to adduce evidence from her cousin that, two days after the first act of sodomy, she complained to her cousin of her husband’s conduct. The Full Court of the Supreme Court of Victoria held that the rule as to complaint evidence which applies in criminal proceedings did not apply in civil or matrimonial proceedings. The Full Court went on by way of obiter to state[9] that, in order to be admissible, the “complaint” must constitute:
… an expression of a grievance or an accusation against the author of such a wrong. That may, of course, take various forms and be uttered in various ways… much must depend upon the manner in which the evidence is given, the person to whom and the person by whom and the circumstances in which the statement is made.
[8] [1950] VLR 242.
[9] [1950] VLR 242 at 246.
In R v Braye-Jones,[10] the defendant was charged with attempted rape. The complainant gave evidence of various steps which the defendant took in the attempt to rape her, including acts which in themselves constituted sexual assault. The complainant escaped and spoke to a bystander. The bystander gave evidence that the complainant told her that a man had dragged her off her horse, started punching her and said if she screamed he would punch her. The complainant did not mention any sexual conduct to the bystander. The Full Court of the Supreme Court of Queensland held that this evidence was admissible as “complaint evidence” notwithstanding that the content of the complaint did not include any reference to a sexual act. The Full Court said:[11]
… the ground of appeal argued … was that the terms of the complaint to Mrs Hungerford by the prosecutrix were inconsistent with the story told by the latter in the witness box and that therefore the evidence was inadmissible. … Clearly enough, evidence of statements made by the prosecutrix which did not bear any resemblance at all to her sworn evidence would not be admissible, for such evidence would be irrelevant. In my opinion, however, the matter is one of degree, and if the substance of the complaint can be identified as relating to the story told by the prosecutrix in evidence, and if it is such that a jury can reasonably regard it as constituting a complaint of a matter of a sexual nature, then I think that inconsistency as to detail is a matter for the jury to consider in their assessment of the credibility of the prosecutrix.
The Full Court went on to quote[12] from R v Lillyman[13] to the following effect:
The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath… Without proof of her condition, demeanour, and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to determine it? Is it to be left to the witness to whom the statement is made to determine and report to the jury whether what the woman said amounted to a real complaint?
[10] [1966] Qd R 295.
[11] [1966] Qd R 295 at 297.
[12] [1966] Qd R 295 at 298.
[13] [1896] 2 QB 167.

In R v Manwaring,[14] it appears that the “complaint” comprised a question by the complainant to her boyfriend “Do you know what has happened to me?” after she had been forcibly placed in a car, screaming, within earshot of her boyfriend. The Court of Criminal Appeal of the Supreme Court of New South Wales held that it was open to the jury to regard this as a “complaint”. Myles J (Street CJ agreeing) said (immediately after the passage quoted above): [15]
Until R v Lillyman, the evidence was confined to the making of the complaint, but thereafter the terms of the complaint itself were admitted into evidence and so the question of whether what was said amounted to complaint came to be treated as a jury question. There is not a great deal of guidance to be had from the cases as to what statements on the part of the victim fall within the scope of recent complaint and what statements fall outside. It has been said that a mere narrative of events is not to be regarded as a complaint: De B v De B. In Queensland it has been held that the complaint must be of a sexual nature: R v Braye- Jones.
[Citations omitted]
[14] [1983] 2 NSWLR 82.
[15] [1983] 2 NSWLR 82 at 90.
On the facts in the cases of Braye-Jones and Manwaring, there was no reference in the words used by the complainant to sexual matters, and yet the evidence was regarded as capable of constituting a “complaint”.
In light of the purpose of the exception to the hearsay rule permitting evidence of proximate complaint being admissible in effect to avoid suggestions of inconsistency of conduct by reason of silence, I consider that it is not a pre‑requisite before the evidence can be taken into account on the issue of credit that the complainant refer in the complaint to sexual acts. It is important to note that in the present case there was no objection to the reception of the evidence from the complainant or her sister as to what the complainant told her sister and that the defendant was free to submit that what the complainant said was inconsistent with her evidence in the witness box and that this adversely affected her credibility.
In the present case, on both the evidence of the complainant and her sister, the complainant was in deep shock, extremely distraught and unable to give a real or detailed account of what had happened. However, it is apparent from a consideration of the complainant’s sister’s evidence alone that the complainant was complaining that she had been hurt by someone, even though she did not identify that person or how she had been hurt. In the words of the Full Court in De B v De B, she was expressing a grievance and making an accusation. Her complaint was consistent with her evidence in the witness box. In those circumstances, the evidence of the complainant’s sister as to the words used was admissible under the doctrine permitting the reception of “complaint evidence”.
Distress evidence
The defendant accepts that evidence by the complainant’s sister of the distress displayed by the complainant was admissible and the Magistrate was entitled to take it into account in assessing the complainant’s credit as to the consistency of her conduct. The defendant accepts that the Magistrate correctly directed himself as to the use which could be made of the distress evidence and in particular that it could not be used as proof of the fact of sexual assault, but was limited to credit and consistency of conduct.
The defendant contends that the Magistrate should have directed himself as to other possible causes of distress and that he could only use the evidence of distress if other explanations had been excluded and implicitly that they were not.
In particular, the defendant points to the evidence which he gave that the complainant appeared to him to be stressed when she was eating her meal and told him of her difficult past and that of her mother and of a problem with her girlfriend.
However, the defendant’s evidence was that, by the time she left his shop, the complainant told him that she felt very good and she appeared to him not to be distressed or upset at all but rather was “very good. She was a very pleasant mind”. In addition, on the defendant’s own evidence, the stress which the complainant exhibited earlier in his shop was minor compared to the extreme distress exhibited to the complainant’s sister. There was no apparent supervening cause of extreme distress after the complainant left the defendant’s shop and before she telephoned her sister.
The Magistrate addressed the topic of alternative causes of the distress at [20] of his reasons when he said:
[The defendant’s] account of what followed [viewing of the slides] is inconsistent with [the complainant] being distraught when she called her sister after she got home … [The complainant’s] account is consistent with her having been, shortly before the phone call, involved in an incident that caused her great distress. … [The defendant’s] conduct as described by her in evidence is conduct that would be consistent with her being distraught on the phone. … her demeanour during the telephone call is consistent with having shortly before been involved in a very distressing incident. [The defendant’s] account of what happened is not consistent with her being in such a state a relatively short time after leaving his shop.
In the circumstances described above, this complaint is not made out.
The defendant also contends that the Magistrate ought to have directed himself that very limited use could be made of the evidence of distress as it was by telephone, and in any event the Magistrate used the evidence of distress as the crucial factor in deciding between the credit of the complainant and the defendant and thereby afforded that evidence too much weight.
The Magistrate expressly identified in his reasons that the discussion between the complainant and her sister was by telephone. While a face to face discussion would have allowed visual observations by the complainant’s sister, her evidence that the complainant exhibited extreme distress was unequivocal. There was no need for the Magistrate to make further reference to the discussion being by telephone than the reference which he made in his reasons.
As to the weight to be given to evidence of distress, the defendant cites R v Flannery[16] and R v Redpath[17] as authorities for the proposition that evidence of distress carries little weight. However, those cases were decided in the context of determining whether or not and the degree to which evidence of distress would constitute “corroboration” under the common law doctrine as to corroboration in sexual cases which has been abolished by the Evidence Act 1929 (SA). Further, those cases emphasise that the weight to be given to distress will depend upon the circumstances and may vary to a large degree.
[16] [1969] VR 586 at 591.
[17] (1962) 46 Cr App R 319.
The present case turned entirely upon the Magistrate’s assessment of the respective credit of the complainant and the defendant. In those circumstances, evidence of distress might assume significant weight.
The defendant also contends that the Magistrate effectively reversed the onus when he stated that the defendant’s account of what happened was not consistent with the complainant being in such a distressed state a relatively short time after leaving his shop. The Magistrate was not reversing the onus in making that statement, but rather discharging the function which the defendant contends he was required to discharge, namely considering alternative explanations for distress consistent with innocence.
Reasons for rejecting the defendant’s credit
The defendant contends that his version of events was not undone in cross‑examination and was not the subject of any internal or external inconsistency. He contends that no reason was given by the Magistrate (leaving aside the distress evidence addressed above) for rejecting his version and rejecting the credibility of his evidence.
Leaving aside the distress evidence, the Magistrate said that he had no doubt that the complainant was an honest and reliable witness and that he was satisfied beyond reasonable doubt that her account was truthful and accurate and that the defendant’s account was not.
In R v Beard,[18] Vanstone J (Doyle CJ and Perry J agreeing) said:[19]
The Judge did not deal with the appellant’s evidence, except to say that he rejected it. That is the complaint. It was suggested on the appeal that the Judge should have enumerated his reasons for that rejection.
I consider the Judge’s reasons were adequate and sufficient. What needed to be determined was a single issue. That was whether the Judge accepted V’s evidence beyond reasonable doubt, notwithstanding the appellant’s sworn denial. … the Judge was entitled to find as he did, without identifying, or indeed without there being, any particular reason for rejecting the appellant’s version, over and above acceptance of the competing account. It was not essential that any specific shortcomings in the appellant’s evidence be identified. This was a case where the preference for the victim’s evidence was very much a matter of impression made by the victim in her evidence, rather than a matter of logic. Where a decision rests on such a basis – as it well may – it is difficult to see how a judge might elaborate upon his reasons for decision.
[18] [2004] SASC 411.
[19] [2004] SASC 411 at [12]-[13].
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.
In addition, (while a sentencing court must exercise its own discretion in determining whether or not to suspend a sentence) the fact that the Magistrate did not refer to the fact that the prosecutor did not oppose suspension of the sentence tends to suggest also that he did not fully and properly weigh circumstances favouring suspension as against circumstances against suspension.[24] I note also that the Magistrate said that the defendant’s conduct following the indecent assault (telling the complainant that he had done nothing wrong) indicated that he did not regard this as a serious offence. Taking into account that submissions were made in mitigation that the defendant had learnt a salutary lesson following his interview by the police and that he accepted the contents of the complainant’s victim impact statement, if the Magistrate regarded the defendant’s conduct immediately following the indecent assault as a determinative factor weighing against suspension of the sentence, that would have been inappropriate.
[24] See Ienco v Kraft (1990) 53 SASR 40 at 43 per Olsson J; Greig v Police (1999) 204 LSJS 383 at 392 per Martin J, [1999] SASC 392.
In the above circumstances, I am satisfied that the Magistrate erred in his approach to the question of full suspension of the sentence of imprisonment. I am therefore required to exercise the sentencing discretion afresh.
The defendant cites R v Marikar[25] and R v M, H,[26] in each of which sentences of imprisonment had been suspended by the sentencing court and the Court of Criminal Appeal held that the decision to suspend was open to the sentencing Judge in the exercise of his discretion. By contrast with R v M, H[27] and R v Marikar[28] the offending in the present case occurred on a single occasion (as opposed to three offences over a period of one month or two years), the complainant was 22 years old (as opposed to 13 years old and 12-14 years old) and the offending did not involve a relationship of diving coach or step-father. While caution needs to be exercised in comparing this case with M, H and Marikar because the latter involved sentencing appeals by the Director of Public Prosecutions, they give some guidance as to the exercise of the discretion to suspend in sexual assault cases.
[25] [2010] SASCFC 36.
[26] (2007) 168 A Crim R 557, [2007] SASC 41.
[27] (2007) 168 A Crim R 557.
[28] [2010] SASCFC 36.
On a consideration of all of the circumstances (including the fact that the offence was opportunistic, involved a 22 year old victim and the defendant had attained the age of 41 without any prior convictions whatsoever and had an excellent character apart from this offence), I consider that it is appropriate to suspend the sentence of imprisonment. I consider that the factors justifying a suspension of the sentence justify a full suspension of the sentence as opposed to the partial suspension which was imposed by the Magistrate.
Conclusion
I dismiss the appeal against conviction. I allow the appeal against sentence and set aside the sentence imposed by the Magistrate. I substitute a sentence of nine months imprisonment, to be suspended upon the defendant entering into a bond to be of good behaviour for a period of two years. I will hear the parties as to the conditions of the bond.