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 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
Counsel for Mr Massan submitted that the sentence imposed by the magistrate was manifestly excessive for three reasons: because of the rehabilitation of her client, because of the nature of the offending; and because the magistrate had erred in recording a conviction against the appellant. Counsel for Mr Massan also submitted that the financial penalty imposed on Mr Massan was excessive, as he had already suffered as a result of his employer placing him on part-time work; and that Mr Massan, as a newcomer to this country, would have his future life and employment prospects affected by a conviction.
Imposition of penalty without conviction
The Sentencing Act confers on the court a discretion to proceed without recording a conviction. Section 16 provides:
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.
Once a court is satisfied that the requirements of sub sections 16(a) and (b) have been met, the court must still consider whether it is appropriate to exercise the enlivened discretion to proceed without recording a conviction. The court should consider the potential benefit to a defendant of not recording a conviction but at the same time have regard to the public interest in a conviction being recorded.[2]
[2] Zefi v Police [2003] SASC 218
Counsel for Mr Massan advanced the following considerations:
-Immediately following the incident, Mr Massan apologised to C and spoke to his employer about what had occurred.
-Mr Massan was not aware that the incident had been reported to the police, until some two months later when they contacted him. He was not charged until eighteen months after the incident.
-Mr Massan has had no further contact with C, apart from a meeting arranged by the employer for the purpose of a formal apology.
-Mr Massan expressed remorse and shame.
-After Mr Massan was charged by police, his employer placed him on part-time work. He has consequently had a reduced income. He was to be reinstated to full pay once court proceedings were over.
-Mr Massan’s employer provided a reference describing the appellant as a reliable, hard and honest worker. Mr Massan has also undertaken training at Regency College in order to become a chef.
-Mr Massan arrived in Australia from Pakistan some years ago as a refugee and became a citizen in 2003. He was from a minority Muslim group who were subjected to persecution.
-Mr Massan’s faith was important to him and he held women in high regard. He felt great shame and regret and was concerned that members of his community had learnt about his conduct.
-Mr Massan married in 2004, and informed his wife of the incident prior to their marriage.
The magistrate’s remarks on penalty were brief. In Godfrey v Police,[3] Doyle CJ dealt with a submission that a magistrate failed to consider matters put to him when the magistrate did not refer to them in his reasons:
The matters put to me and the matters referred to in the magistrate’s reasons were all put to the magistrate. There is no reason to think that the magistrate failed to consider them, even though he did not refer to all of them. There is no obligation on a magistrate in reasons to refer to all matters put to him.
[3] [2003] SASC 294 at [15]
This matter was dealt with by a magistrate in the course of a busy list. He gave short, ex tempore remarks. The court must be careful before concluding that a relevant matter has been overlooked. However, in this case attention has been drawn to the magistrate’s observations that Mr Massan’s “background does not in any way exonerate him” from the offence. Absent from the sentencing remarks is any recognition that Mr Massan’s “background” was a relevant matter for consideration in sentencing. Although the background matters may not “exonerate” Mr Massan, his personal circumstances were important to the exercise of the sentencing discretion.
Proceedings against Mr Massan were not initiated for eighteen months. This unexplained lengthy delay is a relevant matter. During this period, Mr Massan apologised to C and disclosed the incident to his fiancée. His apology, his contrition and his remorse suggest that he is unlikely to commit a similar offence again. He faced up to his offending. Mr Massan’s conduct allows the conclusion to be drawn that he has been rehabilitated. The magistrate’s remarks suggested that no weight, or no sufficient weight, was given to this factor.
The offending involved a momentary incident of indecent touching. The conduct was wrong. The conduct should not have occurred. However, the offending could reasonably be characterised as being at the less serious end of the scale for offences of this type.
Mr Massan’s current employer and his accountant provided impressive character references. As earlier observed, Mr Massan suffered financial detriment as a result of his employer reducing his hours of employment following this incident.
Counsel for the Crown referred to the community interest in convictions being recorded. In R v Briese[4] the Queensland Court of Criminal Appeal observed:
The effect of [a conviction] is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department. … For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and the courts need to be aware of this potential effect. … .
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation … .
[4] [1998] 1 Qd R 487 at 491
In the circumstances of this case, it is safe to conclude that Mr Massan is unlikely to commit an offence of this kind in the future. Having regard to Mr Massan’s character, remorse, antecedents, contrition and rehabilitation, we see that good reason exists for not recording a conviction. In this case the public interest does not call for a conviction. The discretion to proceed without recording a conviction is enlivened. The appeal is allowed for the limited purpose of setting aside the conviction. Otherwise, the orders of the magistrate are confirmed.