Massan v Police - [2005] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MASSAN v POLICE
Judgment of The Honourable Justice Gray
23 March 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant pleaded guilty before magistrate to indecent assault - offending involved tight hugging, kissing on cheek and touching outside of clothing in vicinity of breast - of fellow employee against her will outside the place of employment - appellant convicted and fined $1000 - appeal on grounds that sentence imposed was manifestly excessive in the circumstances.
Discussion of section 16 of the Criminal Law (Sentencing) Act 1988 (SA) - consideration of magistrate's exercise of discretion - consideration of sentencing principles.
Held - appeal allowed for limited purpose of setting aside conviction - other orders of magistrate confirmed.
Criminal Law Consolidation Act 1935 (S) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Zefi v Police [2003] SASC 218; Godfrey v Police [2003] SASC 294; R v Briese [1998] 1 Qd R 487, considered.

MASSAN v POLICE
[2005] SASC 102
Magistrates Appeal
GRAY J
Introduction

This is an appeal against sentence.
On 9 December 2003, Hifazat Ali Massan, the appellant, pleaded guilty in the Magistrates Court to a charge that on 14 April 2002 he indecently assaulted C.[1] He was convicted and fined $1000.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935.
Background
Mr Massan worked at a city restaurant. He attended the restaurant on the day of the offence. He was in the car park when he saw that a fellow employee, C, a young woman, had left the restaurant to control a bout of coughing.
Mr Massan approached C in the carpark and told her that he liked her and wanted a relationship with her. He persisted in his advances despite the fact that C informed him that she was not interested. C started to cough again. Mr Massan patted her on the back and then tightly hugged her. He kissed her on the cheek about three times and placed his hand on the outside of her clothing in the vicinity of her breast. The incident ended when C returned to the restaurant.
The appellant’s only prior criminal antecedent was for a larceny offence in July 2002. No conviction was recorded.
Counsel for the prosecution submitted to the magistrate that the incident had a significant impact on C. She sought medical intervention and was prescribed anti-depressants. She also received counselling. C left her employment and returned to continue her schooling. Reports suggest that she was having difficulty focussing on her studies. In all the circumstances, the prosecution submitted that Mr Massan should be convicted and placed on a good behaviour bond.
Counsel for Mr Massan referred the magistrate to his client’s personal antecedents and…

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.

Continue reading Massan v Police

Details

AGLC: Massan v Police [2005] SASC 102
Case: [2005] SASC 102
Decision Date: 23 March 2005

CaseChat Overview and Summary

The appellant, Hifazat Ali Massan, appealed against the sentence imposed by the Magistrates Court, arguing that the fine of $1000 was manifestly excessive given the circumstances of the offence. Massan had pleaded guilty to an indecent assault involving tight hugging, kissing on the cheek, and touching outside of clothing in the vicinity of the breast of a fellow employee against her will outside the place of employment. The appeal focused on the severity of the sentence and whether it was appropriate in the context of the offence.

The legal issues before the court included the appropriate exercise of discretion under section 16 of the Criminal Law (Sentencing) Act 1988 (SA), and the principles of sentencing that should have been applied. The court needed to determine whether the sentence was manifestly excessive and whether the magistrate had properly considered all relevant factors, including the seriousness of the offence and the appellant’s personal circumstances.

The court examined the magistrate's exercise of discretion and the principles of sentencing. It found that while the offence was serious, the magistrate had not adequately considered the appellant's background and his remorse. The court concluded that the sentence was manifestly excessive, leading to the decision to allow the appeal in part to set aside the conviction. The other orders of the magistrate, including the fine, were confirmed. This decision underscores the importance of considering both the severity of the offence and the personal circumstances of the offender when determining an appropriate sentence.

Orders

Orders of the court

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Background

Background to the litigation

On 9 December 2003, Hifazat Ali Massan, the appellant, pleaded guilty in the Magistrates Court to a charge that on 14 April 2002 he indecently assaulted C.[1] He was convicted and fined $1000.[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935.Background Mr Massan worked at a city restaurant. He attended the restaurant on the day of the offence. He was in the car park when he saw that a fellow employee, C, a young woman, had left the restaurant to control a bout of coughing. Mr Massan approached C in the carpark and told her that he liked her and wanted a relationship with her. He persisted in his advances despite the fact that C informed him that she was not interested. C started to cough again. Mr Massan patted her on the back and then tightly hugged her. He kissed her on the cheek about three times and placed his hand on the outside of her clothing in the vicinity of her breast. The incident ended when C returned to the restaurant. The appellant’s only prior criminal antecedent was for a larceny offence in July 2002. No conviction was recorded. Counsel for the prosecution submitted to the magistrate that the incident had a significant impact on C. She sought medical intervention and was prescribed anti-depressants. She also received counselling. C left her employment and returned to continue her schooling. Reports suggest that she was having difficulty focussing on her studies. In all the circumstances, the prosecution submitted that Mr Massan should be convicted and placed on a good behaviour bond. Counsel for Mr Massan referred the magistrate to his client’s personal antecedents and his conduct following the incident and made application pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA) for the court to proceed without recording a conviction. Magistrate’s Reasons The magistrate gave short remarks on penalty:Defendant, on the face of it, the charges of this nature are very serious. You have absolutely no right to indecently assault another person regardless of you [sic] age and indeed the age of the victim and regardless of any relationship including that of a marital relationship when the victim does not consent to being sexually assaulted or indecently assaulted.Your counsel has gone to some length to tell me about your background and I accept those submissions, but they do not, in any way, exonerate you from the offence that you committed.Quite clearly the young lady in question made it clear to you that she was not interested in your advances and you persisted; not only in hugging her tightly and kissing her, but you then placed your hand outside her clothing and groped her left breast. Quite clearly the victim did not consent to being touched in that manner. In the circumstances, the touching amounted to indecency.You come from a community, which respects women and you didn’t respect the rights of this particular lady on this day. In all the circumstances, notwithstanding the submission that I should not record a conviction, I feel restrained to do so and whilst I do not propose to impose a term of imprisonment, I consider that the penalty should reflect the seriousness of this type of charge.I take into account the touch was only momentarily [sic] and it was outside the clothing. You will be convicted and fined $1,000 plus court costs, the levy and prosecution costs.Issues on appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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