McManus v Police - [2019] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCMANUS v POLICE
[2019] SASC 206
Judgment of The Honourable Justice Bampton
5 December 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appeal against sentence imposed by Magistrate – where appellant pleaded guilty to indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) – whether the Magistrate sentenced on a mistaken view of the facts.
Held: Appeal allowed – Magistrate sentenced on a mistaken view of the facts – sentence is set aside and appellant resentenced.
Sentencing Act 2017 (SA) s 96, s 25, s 97, s 10, s 11; Criminal Law Consolidation Act 1935 (SA) s 56, referred to.

MCMANUS v POLICE
[2019] SASC 206
Magistrates Appeal: Criminal

BAMPTON J: Terence Matthew McManus appeals a sentence imposed in the Magistrates Court following his plea to one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The Magistrate sentenced Mr McManus to an immediate custodial sentence of seven months and one week.
Grounds of appeal
Mr McManus complains that he was not afforded procedural fairness, that the Magistrate sentenced him on an incorrect factual basis, that the Magistrate erred in finding that s 96 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) precluded the imposition of a suspended sentence, that the Magistrate erred in finding that he was unable to utilise s 25 of the Sentencing Act, and that the sentence was manifestly excessive.
The circumstances of the offending
The prosecutor informed the Magistrate during sentencing submissions that the offending occurred in the following circumstances. At around 2.45 pm on 5 April 2018, Mr McManus entered a spa pool at the Adelaide Aquatic Centre that was occupied by the victim, a 16-year-old boy. Mr McManus initially sat about a metre away from the victim and after about five minutes he began to move closer to the victim. The victim said that he felt the pressure of the spa jets change on his stomach. He put his hand down over the jet to feel the water flow. At this point, he felt the top of Mr McManus’ hand, which was tucked over his testicles, on the outside of his board shorts, massaging them. The victim said he froze in fear. After about 20 to 30 seconds, Mr McManus moved his hands to the inside of the victim’s board shorts, and began masturbating his penis. This continued for about 30 seconds, starting off gently and becoming quite firm. The victim said that he was frozen in fear and did not say or do anything. Eventually, the victim took hold of Mr McManus’ wrist and moved his hand away. He then stood up and exited the spa, and Mr McManus remained in the spa. The victim left the Aquatic Centre hiding as he went, to…

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 McManus v Police

Details

AGLC: McManus v Police [2019] SASC 206
Case: [2019] SASC 206
Decision Date: 5 December 2019

CaseChat Overview and Summary

The case of McManus v Police involves an appeal against a sentence imposed by a Magistrate in South Australia. The appellant, Mr McManus, pleaded guilty to an indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA). The appeal was heard by the Supreme Court, which was tasked with determining whether the Magistrate had sentenced Mr McManus based on a mistaken view of the facts.

The legal issues before the court included whether the Magistrate erred in the sentence imposed on Mr McManus, and if the sentence adequately reflected the seriousness of the offence, the protective and punitive purposes of punishment, and the prospects of Mr McManus' rehabilitation. The court also had to consider the primary purpose of sentencing, which is to protect the safety of the community, and whether this purpose was adequately served by the sentence.

The court found that the Magistrate had indeed sentenced Mr McManus based on a mistaken view of the facts. The court held that the primary purpose of sentencing Mr McManus was to protect the safety of the community, and this purpose was not adequately reflected by the sentence imposed. The court allowed the appeal and set aside the sentence imposed by the Magistrate. Instead, the court ordered that Mr McManus be discharged upon entering a two-year bond with conditions, including supervision by a community corrections officer for one year, undergoing the treatment recommended by Mr Fugler, and maintaining good behaviour. If Mr McManus failed to comply with the conditions of the bond, he would be required to appear before the Court for sentence.

The court's decision highlights the importance of considering the primary purpose of sentencing, which is to protect the safety of the community, and ensuring that the sentence imposed adequately reflects this purpose. The court also emphasised the importance of promoting the rehabilitation of the offender, particularly when there is a likelihood that the offender will not re-offend. The court's decision demonstrates the need for careful consideration of the facts of each case and the individual circumstances of the offender when imposing a sentence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The primary purpose for sentencing Mr McManus, which must be the paramount consideration in determining and imposing the sentence, is to protect the safety of the community. The seriousness of the offending and the punitive and protective purposes of punishment in the circumstances of this matter are, in my view, adequately reflected by the making of an order under s 97 of the Sentencing Act. Most importantly, such an order will allow Mr McManus to immediately undertake the intervention measures recommended by Mr Fugler, giving him the best chance of rehabilitation and thereby ensuring the protection of the safety of the community.Conclusion The orders I make, without disturbing the conviction recorded on 11 September 2019, are:1.The appeal is allowed.2.The sentence imposed by the Magistrate is set aside.3Mr McManus will be discharged upon entering a two-year bond in the amount of $2,000. Conditions of the bond are that Mr McManus is to be under the supervision of a community corrections officer for one year, he is to be of good behaviour, he is to undergo the treatment recommended by Mr Fugler and if, during the term of the bond, he fails to comply with a condition of the bond he is to appear before the Court for sentence.

Ratio Decidendi

Legal Principle Established

The respondent submitted that the offending admitted by Mr McManus, is a serious sexual assault committed against a 16-year-old victim who was frozen with fear. Despite Mr McManus’ attenuating personal circumstances, his offending it was submitted is not offending that the Court can regard as appropriate for disposition under s 97 of the Sentencing Act.Consideration The stressors that plagued Mr McManus at the time of his offending have, in the main, resolved. He is prepared to undergo the psychological treatment recommended by Mr Fugler and has arranged to consult the psychologist Madeleine Barklay. As the Magistrate noted, it is of significance that Mr McManus is willing to attend ongoing counselling and his willingness is critical to his rehabilitation. The Magistrate also accepted that Mr McManus was unlikely to offend again and recognised that he has very good prospects of rehabilitation that should be encouraged and promoted. The Sentencing Act prescribes that the primary purpose for sentencing a defendant for an offence is to protect the safety of the community. Protection of vulnerable young persons is a paramount consideration. The secondary purposes are to ensure Mr McManus is punished and held accountable, to publicly denounce his conduct, to publicly recognise the harm done to the victim, to provide personal and general deterrence, and to promote his rehabilitation. Section 10 of the Sentencing Act provides that, subject to the Act, I must not impose a sentence of imprisonment on Mr McManus unless I am satisfied that the seriousness of the offence is such that the only penalty that can be justified is imprisonment or is required for the protection of the safety of the community. I have also borne in mind the individual sentencing factors prescribed in s 11 of the Sentencing Act. Mr McManus comes to the Court with no criminal record whatsoever and is to be sentenced for one count of indecent assault committed against a young vulnerable victim. He has pleaded guilty and has demonstrated his remorse by accepting responsibility for his conduct and in recognising the harm he has caused the victim. I accept, as did the Magistrate, that he is unlikely to re-offend and he has very good prospects of rehabilitation. He also had the added protective factor of the love and support of his wife and family, who are aware of his offending. The primary purpose for sentencing Mr McManus, which must be the paramount consideration in determining and imposing the sentence, is to protect the safety of the community. The seriousness of the offending and the punitive and protective purposes of punishment in the circumstances of this matter are, in my view, adequately reflected by the making of an order under s 97 of the Sentencing Act. Most importantly, such an order will allow Mr McManus to immediately undertake the intervention measures recommended by Mr Fugler, giving him the best chance of rehabilitation and thereby ensuring the protection of the safety of the community.Conclusion