Mearns v Neill
[2016] ACTSC 36
•16 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mearns v Neill |
Citation: | [2016] ACTSC 36 |
Hearing Date: | 18 February 2016 |
DecisionDate: | 16 March 2016 |
Before: | Penfold J |
Decision: | 1. The appeal is upheld. 2. The convictions and sentences imposed in the Magistrates Court are set aside. 3. Without recording convictions, the appellant is ordered to sign undertakings to be of good behaviour for 18 months. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – Interference with Discretion of Court Below – sentences for assault and act of indecency – whether sentences were manifestly excessive – submissions made to Magistrate about effects of convictions on appellant’s capacity to work in aged care sector or security industry – inaccurate submissions made to Magistrate to effect that recording of convictions would be immaterial in terms of impact on appellant’s employment prospects – failure to consider appellant’s subjective circumstances at time of offences – sentences were manifestly excessive – appeal upheld – appellant re-sentenced. |
Legislation Cited: | Aged Care Act 1977 (Cth) Child Protection (Working with Children) Act 2012 (NSW), s 18, Schedule 2 Accountability Principles 2014 (Cth) Health Practitioner Regulation National Law Accountability Principles 2014 (Cth), Explanatory Statement |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Balthazaar v R [2012] ACTCA 26 Tuckey v Ede [2010] ACTSC 95 |
Parties: | David William Mearns (Appellant) Bernard Anthony Neill (Respondent) |
Representation: | Counsel Ms L Taylor (Appellant) Ms M Moss (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 74 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Doogan Date of Decision: 7 August 2015 Case Title: Neill v Mearns Court File Numbers: CC2014/9073; CC2014/9074 |
Introduction
David Mearns has appealed against sentences imposed in the Magistrates Court on 7 August 2015 for an assault and an act of indecency.
The offences
The offences were very odd. They are described in the police statement of facts put to the Magistrates Court as follows:
... the defendant was employed as a Team Leader of carers with the Villaggio Sant Antonio Nursing Home. [The complainant] is an employee with Catering Industries, who provide contracted services for providing meals to the nursing home residents.
The incident occurred in the kitchen and storeroom /office at the Villaggio Sant Antonio Nursing Home, 35 Burkitt Street, Page, in the Australian Capital Territory (ACT). The defendant entered the kitchen ... and stood next to [the complainant], who was cutting vegetables at the time. Also in the kitchen at the time, was ... the kitchen assistant.
Whilst cutting vegetables, [the complainant] has suddenly felt someone grabbing her from behind. [The complainant] could not see who it was that grabbed however; believed it was the defendant, as he had been standing next to her prior to her being grabbed. [The complainant] was grabbed around her upper abdomen and could feel what she believed were arms, pushing up on her breasts.
[The complainant] described the force of being grabbed as though her ribs were being crushed, the air was being crushed out of her and that she thought she was going to pass out. [The complainant] was lifted from the floor of the kitchen and started to be carried toward the kitchen staff office and dry storeroom. As she was being carried, [the complainant] recognised the hands around her as being those of the defendant.
The defendant carried [the complainant] to the doorway of the kitchen staff office and dry storeroom, where he put [the complainant] down on the floor. Upon the defendant putting her down, [the complainant] has felt a blow to her right buttock and felt sharp pain as a result of the blow.
[The complainant] did not see who delivered the blow however; believes it was the defendant. After being hit on the right buttock, [the complainant] turned around; saw the defendant laughing, before the defendant walked out of the kitchen staff office and dry storeroom and out of the kitchen.
The appellant had originally pleaded not guilty, but pleaded guilty on the Tuesday set down for a hearing in the Magistrates Court. The Magistrates Court had been notified on the previous Friday that guilty pleas would be entered and there would be no need for a hearing.
This appeal centres on whether the Magistrate should have recorded convictions against the appellant rather than making orders under s 17 of the Crimes (Sentencing) Act 2005 (ACT), commonly known as “non-conviction” orders.
Section 17 is relevantly as follows:
17Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b)a good behaviour order under section 13.
NoteA good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a)the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
NoteAn appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
The evidence
In evidence before the Magistrate were:
(a)the Australian Federal Police statement of facts;
(b)the appellant’s criminal history;
(c)a victim impact statement;
(d)three character references for the appellant;
(e)a copy of the appellant’s resume;
(f)a bundle of documents clearly or arguably relating to the significance of a criminal record to employment in the aged care or security industries, being:
(i)a Registration Standard effective from 1 July 2015 and published by the Australian Health Practitioner Regulation Agency;
(ii)the Accountability Principles 2014 (Cth), made under the Aged Care Act 1977 (Cth) by the Assistant Minister for Social Services on 24 June 2014 (24 pages);
(iii)an Explanatory Statement for the Accountability Principles 2014 (20 pages);
(iv)a document headed “Police Certificate Guidelines” and described as having been “developed to assist approved providers with the management of police check requirements under the Accountability Principles 2014” (18 pages);
(v)copies of s 18 of, and Schedule 2 to, the Child Protection (Working with Children) Act 2012 (NSW), and of s 61N of the Crimes Act 1900 (NSW); and
(vi)a copy of s 21 of the Security Industry Act 2003 (ACT) relating to the significance of a criminal record to employment in the security industry.
Information about the appellant’s background and personal circumstances were provided in submissions by his counsel, who said:
At the time of the incident my client was labouring under a degree of emotional distress. He had lost his 25-year-old son in a motor vehicle accident at the Gold Coast two months before this incident. He still suffers from that grief today and no doubt will for the rest of his days. He was also under a degree of stress in the workplace and at the time, your Honour, was taking prescribed medication being Mirtazapine for anxiety and sleeplessness under the guidance of his general practitioner.
By way of background, your Honour, in the absence of a pre-sentence report, I’ll observe also the following. He was born in Sydney, your Honour, the youngest of two children. He has got a brother who lives in Sydney. He completed his high school certificate in year 10 at Burnside in 1978. He and his former wife had two children, a daughter aged 29 and a son who I mentioned previously, your Honour, who has passed away. He and his wife separated, your Honour, approximately 23 years ago.
He engaged in a number of occupations including hospitality, retail and security, before commencing a career in aged care in the early 2000s. Your Honour will note from his resume that he has undertaken training and obtained qualifications in aged care and professionally he wishes, if able, to continue to progress in. He is currently enrolled to obtain his qualifications as an enrolled nurse and this involves TAFE at the Illawarra Campus which is actually located at Queanbeyan, so as to continue in that profession. He has continued his studies, your Honour, on an intermittent basis since 2006 and will complete those studies next year.
The only matter on the appellant’s criminal history was a low range drink-driving offence committed in NSW in 2003. As I understand the criminal history, no conviction was recorded for that offence As well, he has a substantial traffic record in NSW, mainly consisting of speeding offences.
Victim impact statement
In the victim impact statement, the victim described the incident. She said she was left feeling violated, intimidated, vulnerable and physically sick. Following the assault, she said, she had lost 22kg, and had frequently been absent from work due to sickness and psychological problems. She referred to suffering panic attacks connected with going to work, and migraines, and said that she often needed to be driven to work by family members. She said she had become hypervigilant and was constantly scanning for danger. Her sleep had become disturbed, she found intimacy with her husband uncomfortable, and she disliked being touched. She was especially unhappy that, having been a person who enjoyed her own company and her independence, she has become a person who cannot be on her own, even at home.
Character references
A friend and former colleague of the appellant, who had known him for 18 years, wrote that he had known the appellant only as a decent, hardworking and trustworthy person.
Another colleague noted that after beginning work towards a Certificate 3 in Aged Care, the appellant had become an aged care facility educator in the Kimberley Region, providing culturally appropriate service delivery with and for indigenous people. This colleague went on:
David has worked in an acute, aged and community health care setting. He has contributed so much to the industry over his many years of service. He has been committed to his own personal development, currently undertaking a diploma of nursing that will result in enhanced outcomes for his consumers.
...
I work as a residential aged care facility manager in Canberra and am a nurse. If a conviction is recorded I can assure you David will find it extremely difficult to continue to care for people, and the industry will lose an asset that they have invested in for so many years and watch flourish, David will also lose his focus in life also that is caring for vulnerable and sick people.
His third referee wrote:
I am shocked that someone as lovely as David has been charged with such offences. I am a nurse and I have worked with David in an acute setting in a hospital and found him to be respectful of the elderly, the frail, the vulnerable and the sick. He was at all times a hard working and useful member of the team. But David also brought a sense of fun and good humour to an often stressed and heavy day’s work.
I asked him if he was remorseful and he said that he is very sorry for the upset he has caused.
... I pray that he understands and accepts what has happened to him and that he does not stop being the wonderful carer that he is – we are way too short of such compassionate and reliable carers.
Material relating to effect of convictions
The Accountability Principles 2014 prohibit an approved provider employing a person who has been convicted of “sexual assault”, or convicted and imprisoned for any other form of assault. The scope of the expression “sexual assault” is not clear from the material before the Magistrate, but the Police Certificate Guidelines also provided do give the impression that it is intended to be of wide rather than narrow application; the act of indecency committed by the appellant would seem likely to be included, even if some other acts of indecency would not be.
Section 18 of the Child Protection (Working with Children) Act prohibits the grant of a working with children check clearance to, in general terms, persons convicted of disqualifying offences specified in Schedule 2 to that Act. That Schedule specifies, among others, the offence of committing an act of indecency with or towards a person aged 16 years or above that is created by s 61N of the Crimes Act.
The Registration Standard indicates that, under the Health Practitioner Regulation National Law, a health practitioner’s criminal history may be relevant to the practice of the practitioner’s profession. The material put before her Honour did not indicate what powers may or must be exercised by the Australian Health Practitioner Regulation Agency if that body determines that the criminal history is relevant, but in submissions before her Honour, counsel for the appellant submitted that consideration of a criminal history might affect a health practitioner’s registration.
The effect of s 21 of the Security Industry Act was, relevantly, that a security industry licence was not to be issued to a person who, within 10 years before the date of application for the licence, had been convicted of an assault for which he or she had been imprisoned or fined $500 or more. Thus, the appellant would have been effectively excluded from obtaining a security industry licence for 10 years from the sentencing date if (as occurred) he was convicted of the assault and fined at least $500.
Submissions on sentence
The Magistrate heard submissions from both parties.
Defence submissions
I note first that no explanation was put before the Court for what can only be described as bizarrely inappropriate conduct by the appellant.
Defence counsel’s submissions before the Magistrate were clearly aimed at persuading her Honour to refrain from convicting the appellant. Counsel referred to the appellant’s prior good character, and then said:
Without seeking to downplay or minimise the devastating effect that the incident has had on the victim, the consequences of his moment of madness of last July also have been drastic for Mr Mearns. Following the reporting of his actions his employment with the nursing home was terminated. He has worked on an intermittent basis since that time in both retail and security and currently works three days per week as a security guard.
The termination of the employment with the nursing home was devastating but probably an inevitable blow for Mr Mearns having regard to the incident. He was working in a field in which he was respected for his caring abilities and that’s attested to by the subjective references that have been tendered. His actions now place his ability to pursue such a career in jeopardy. In this respect, your Honour, I have tendered a number of documents and I will take them to you individually where relevant. The purpose of this exercise, your Honour, is to demonstrate the effect that a conviction may have on Mr Mearns’ future employment and career.
Counsel then referred to the circumstances in which the offending occurred, the appellant’s general good character (again), his low risk of re-offending, his plea of guilty (while conceding that it had come relatively late), and the impact of any conviction on his future employment. Although those submissions addressed most of the matters required to be considered under s 17 of the Crimes (Sentencing) Act, defence counsel did not specifically mention the provision.
Prosecution submissions
Apart from pointing out that the offences were “at the low to mid-range of objective seriousness” but were “in or of themselves ... serious offences”, the prosecutor mentioned general and specific deterrence, and the need to denounce the offences and recognise the harm to the victim. Almost all her submissions were aimed at minimising the significance for Mr Mearns of recording convictions against the appellant.
The prosecutor responded to the defence submissions about the effect of recording convictions by saying, in passing, that a non-conviction order was not appropriate for the charges.
She then addressed the Court about the impact of the Working with Vulnerable People (Background Checking) Act 2011 (ACT) (the Working with Vulnerable People Act). Without apparently handing up a copy of the Act or even citing it correctly, she made submissions relating to a section of the Act that creates offences relating to failures to disclose relevant legal findings. She did not point out that, while the Act does require the disclosure of a finding of guilt, even without a conviction, such a finding feeds into a risk assessment process; it does not necessarily exclude an offender from working with vulnerable people. More significantly, she told the Magistrate that “a finding of guilt prohibits the defendant from getting a Working with Vulnerable People card”, a proposition which, as was pointed out by defence counsel to her Honour, does not appear to be correct. The legislation requires a risk assessment to be carried out before a person is registered (presumably, given a card), and provides for consideration of many aspects of an offence in respect of which a finding of guilt has been made, including such things as the nature, gravity and circumstances of the offence and how long ago it was committed (s 30).
Defence counsel, without waiting for an invitation, made further submissions about the Working with Vulnerable People Act and the effect of recording convictions. He was not invited to respond to other prosecution submissions (including the passing submission that a non-conviction order was not appropriate) before her Honour began her sentencing remarks.
Sentencing
Her Honour then proceeded to sentence. She said:
Well, I’ll say right at the outset, it’s not appropriate, in my view, to dispose of these matters without a conviction.
...
I would not consider that. I mean there is certain criteria for disposal under section 17 and the whole of this case does not meet that criteria. The start of it is the nature of the offences, whether it is a trivial offence or whether it is not and the circumstances to commit an act of indecency upon a woman, a woman who is just going about her business in the kitchen chopping vegetables, and to have this man come up and do what he did to her, it is not appropriate. I do not even know that it is worthwhile going into why it is not appropriate. It is an assault and it is certainly an act of indecency.
This man was in a position, in a more senior position than she was. She had a right. She had a right, working in the job that she was working, going about, just going about her own work. She had the right to feel safe. She had the right to feel respected, not to be interfered with and not to be frightened; not to be frightened.
I do not know how big this woman is but I note that she is some 10 years younger than you, sir. I do not know what her physical size is. There is no information about that; not that that, of itself, is significant, but you cannot behave in that fashion.
If Mr Smith says that it was a brain snap or some other reason that is totally not able to be explained, so be it, but it happened and it was no less frightening to her; absolutely no less frightening to her. It would have been frightening, I find. I find it would have been frightening for a man to come up. She knew you for what, about two years I think she says in the report. She had known you for about two years. She should have felt that she could have trusted you and she should have felt, in her workplace, that she could have gone about her business without any fear of harassment or any fear of assault from somebody who worked with her and presumably who she would have otherwise had every reason to trust but she did not.
So, I do not know what was going through her mind when you picked her up and tried to drag her off into some other place. You can just imagine what was going through her mind, and I think she tries to explain that in the victim impact statement. She did not know what was going to happen to her and it would have been a very frightening time for her and humiliating.
It is an assault, so it is a criminal offence. It is humiliating. It is degrading and it shows gross disrespect. To behave like that shows gross disrespect and then you laughed about it. You laughed about it.
I do not know what was going through your mind. Who knows what was going through your mind, Mr Mearns. There has been no indication that you have had that sort of character or have that, I should say “have”, have that sort of character because there is nothing on your criminal history that suggests that and that people who know you or think they know you perhaps seem to regard you rather highly but maybe they are wrong. Maybe they are wrong.
I do take into account the fact that you pleaded guilty but it was late. The plea was late. I understand what Mr Smith is trying to say that if maybe his office had got the act together it might have been entered a bit earlier. I do not know whether that is true or not but I note that you pleaded not guilty. You pleaded not guilty right from the start and the plea of guilty was not entered until the hearing date, right on the hearing date, which was some months after, some many months after this offence occurred so this poor woman would have been sitting there thinking.
First of all she was reluctant to go and complain or make any complaint about it because of what she was concerned about in having to repeat it all and the anxiety that it was causing her and then she would have been waiting perhaps, waiting all those months, all those months to give evidence but nevertheless, you did plead guilty and that did save her the indignity and the embarrassment and the stress that a lot of people feel about coming to court to give evidence in matters such as this and indeed to come to court to be witnesses. Often witnesses are made to feel like they are in the position of the defendant. They feel traumatised.
So, I do note that you have pleaded guilty and you do get some credit for your plea of guilty, albeit late, but I also note that in all probability it would have been a strong prosecution case because there was a witness. Somebody saw what you did. Somebody else witnessed it so it would not have just been her word against yours. It would have been her word against yours if you had pleaded not guilty with a witness, with another person who saw it all.
I do take into account the consequences that this has had for your employment but that is a consequence for which you are responsible and working in this field for as long as you have you should have been aware. Your conduct should have been absolutely scrupulous and above reproach and on this day it was not.
I accept what has been put on your behalf. I do accept it. I accept that you are remorseful and that you are contrite and that you are sorry for what you did. I accept that. I am more than willing to believe that you are the style of man, and I cannot find any differently, except by looking at your criminal history, and you have no prior record like that, and the character references, that you are otherwise a decent person but what you did on this day was not the right thing to do. It was not a good thing to do and it was a crime, two crimes, two criminal acts that you committed.
The consequences, as I say for your employment, if you are convicted, are severe but to me, to my way of thinking, there would be no justice for the complainant in these matters if there was not some consequence for you because she has had to suffer consequences from what you have done. If you can just escape any consequences for yourself then that is no justice, no justice for her and no justice for the community because the community cannot accept matters like this to go by in a workplace, matters like this to go by in a workplace; offences like this to go by without some form of some sentence which is a sentence of deterrence and a sentence of punishment. People have to be made accountable for their actions.
I do regard them as being at the mid-range, the assault. I regard that to be at the mid-range and the act of indecency, the slap, towards the lower range but with the act of indecency some people can go to gaol for five years, for five years if they commit offences such as that depending on other circumstances and other factors. It is an offence that is a serious offence because of the penalty that is attached to it.
What I will do is impose convictions on both offences and a fine and a good behaviour order. So, on the assault charge, 9074, you will be convicted. I impose a fine of $750, court costs of $73 and criminal injury compensation levy of $50. I will ask about time to pay. I am happy to give considerable time to pay given the perhaps precarious employment status.
On the charge of 9073, the act of indecency, you will be convicted, Mr Mearns. I will release you on a good behaviour order. Can I say, sir, that if it had not been for the fact that you have no prior criminal history and your otherwise good character, as attested to by the references, the penalties could well and truly have been far more severe than what I am imposing on you, even for a first time offence such as this because of its reprehensible nature.
That is, her Honour convicted the appellant on both charges, fined him $750 for the assault and made a two-year good behaviour order for the act of indecency.
Grounds of appeal
The appellant filed a notice of appeal from all the orders on 3 September 2015. It specified the following grounds of appeal:
(a)The sentence was manifestly excessive in all of the circumstances;
(b)The Order and Sentence had the effect of depriving the Appellant of the opportunity to:
(i)Maintain his security industry licence
(ii)Pursue an alternative career in the aged care sector and or alternatives in nursing
(iii)Maintain his current employment in the security industry
(c)The court did not adequately have regard to other sentencing options available at the time of sentence.
(d)The sentencing Magistrates was in error in not appreciating that the Order and Sentence would be likely to cause particular hardship to the Appellant.
At the beginning of the hearing, counsel for the appellant declined to press appeal ground (c). In discussion, the grounds of appeal were refined, and with leave, the appellant filed an amended notice of appeal setting out the following grounds:
(a)That the sentence was manifestly excessive;
(b)That the Learned Magistrate misapplied s.17 of the Crimes (Sentencing) Act 2005 (ACT); and
(c)That the Learned Sentencing Magistrate failed to take account of a relevant consideration, namely s.33(1)(m) and s.33(l)(r) of the Crimes (Sentencing) Act 2005 (ACT).
Consideration
Manifest excess
Counsel for the appellant made the following submissions in relation to whether the sentences could be categorised as manifestly excessive:
(a)That although her Honour had determined the seriousness of the assault as “mid-range”, and the seriousness of the act of indecency as at the “lower” range (rather than as a “low range” offence as submitted by the prosecutor), these categorisations overestimated the gravity of both the offences.
(b)That the appellant’s 25-year-old only son had been killed in a motor vehicle accident only two months before the incident, that he was still grieving, that he found his own conduct inexplicable, and that he could only characterise his behaviour as a “brain snap”.
(c)That at the time of the incident the appellant had been taking prescribed medication for sleeplessness and anxiety.
(d)That the appellant’s homosexual orientation suggested that his actions should not be seen as having any sexual connotation.
(e)That the appellant’s prior relationship with the complainant had been friendly, and there was nothing in their interactions to explain his behaviour.
(f)That his character witnesses attested to his exemplary character and in particular his suitability for work in the nursing sector.
(g)That he had lost his employment in the aged care sector as a result of being charged, and that at the time of sentencing he had been working in the security industry.
(h)That there was evidence before her Honour that recording convictions, especially when accompanied by a fine over $500 for the assault, would either prevent the appellant working, or seriously limit his employment options, in either the aged care sector or the security industry.
The respondent’s written submissions included the following points:
(a)That the recording of a conviction is the usual outcome of a finding of guilt (Balthazaar v R [2012] ACTCA 26 at [53]; Proud v Sladic [2014] ACTCA 26 at [42].
(b)That a court that is considering the making of a non-conviction order must consider all the factors set out in s 17(3) (quoted at [5] above), and may consider “anything else the court considers relevant” (s 17(4)).
(c)That her Honour considered the s 17 matters when she said:
I would not consider that. I mean there is [sic] certain criteria for disposal under section 17 and the whole of this case does not meet that criteria. The start of it is the nature of the offences, whether it is a trivial offence or whether it is not and the circumstances to commit an act of indecency upon a woman, a woman who is just going about her business in the kitchen chopping vegetables, and to have this man come up and do what he did to her, it is not appropriate. I do not even know that it is worthwhile going into why it is not appropriate. It is an assault and it is certainly an act of indecency.
This man was in a position, in a more senior position than she was. She had a right. She had a right, working in the job that she was working, going about, just going about her own work. She had the right to feel safe. She had the right to feel respected, not to be interfered with and not to be frightened; not to be frightened.
(d)That her Honour had accepted the prosecutor’s submissions that:
the act of indecency was at the lower end of the range and common assault was within the mid range in terms of objective seriousness.
(e)That her Honour had clearly considered the factors relevant to s 17 in determining the sentence to impose, even though her Honour had not referred to s 17 after the comments quoted at (c) above. For this submission, the respondent relied on the caution of Kirby J given in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 against “combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law” and noted that the sentencing court was “a busy court of summary jurisdiction”, presumably an allusion to the caution given by Kirby P in the earlier case of Acuthan v Coates (1986) 6 NSWLR 472 at 479, against falling:
... into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
(f)That the appellant’s difficult personal circumstances, specifically relating to the recent death of his son and his subsequent anxiety and sleeplessness, had not been argued, and could not be accepted, as “extenuating circumstances” in which the offences had been committed, but that they had been available for consideration by the sentencing Magistrate as another relevant matter under s 17(4) (Proud v Sladic at [39]), and that her Honour had accepted the proposition that the offences reflected a “brain snap”.
(g)That her Honour had considered the appellant’s character, antecedents, age, health and mental condition in formulating an appropriate sentence, and that in relation to his character, she had said:
There has been no indication that you have had that sort of character or have that, I should say “have”, have that sort of character because there is nothing on your criminal history that suggests that and that people who know you or think they know you perhaps seem to regard you rather highly but maybe they are wrong. Maybe they are wrong.
(h)That the prosecutor’s reference on sentencing to the provisions of the Working with Vulnerable People Act was not, as submitted by the appellant, a red herring. The respondent pointed out, correctly, that the Act did apply to findings of guilt as well as to convictions, and did apply to the act of indecency offence. She then submitted, more controversially, that therefore the recording of a conviction instead of making a non-conviction order was “immaterial”.
(i)That in determining sentence, the sentencing Magistrate had properly taken into account the impact of the sentence on the appellant’s employment and had properly pointed out that sentencing is a balancing act.
(j)That the devastating impact of the convictions on the appellant’s chosen career was only one factor that had to be balanced by her Honour against other sentencing considerations.
In oral submissions, counsel for the respondent, reflecting the Magistrate’s comment that the appellant “was ... in a more senior position than” the complainant, said that the appellant was in a position of trust and authority, given that he was a team manager of carers at the nursing home, and the complainant occupied a less senior position as an employee of the catering company providing meals in the nursing home. It is possible that despite the fact that the appellant and the complainant worked for different employers and provided different services in the nursing home, the appellant might have had some kind of authority over the complainant (for instance, as a member of the nursing staff, he might have been able to direct the catering staff not to provide certain food to a particular resident of the nursing home). However, I reject the argument that the circumstances as outlined in the police statement of facts and conceded by the guilty pleas establish beyond reasonable doubt (R v Olbrich (1999) 199 CLR 270 at 281; [27]) that the appellant occupied any position of trust or authority in relation to the complainant.
Counsel also said that the Magistrate had turned her mind to some of the factors required or permitted to be considered before a non-conviction order could be made, specifically the seriousness of the offence, the appellant’s character and his criminal history. In argument, counsel conceded that her Honour had not referred to the appellant’s age, health or mental condition, despite the evidence before her about the death of the appellant’s son and the fact that he was at the time of the offences being medicated for anxiety and sleeplessness.
In argument, counsel for the respondent accepted the submissions made on behalf of the appellant that the recording of convictions would have specific effects on the appellant’s capacity to continue working in either the aged care sector or the security industry. That is, while the recording of a conviction might have been immaterial under the Working with Vulnerable People Act, it was certainly material under other relevant legislation.
The law
The respondent conceded:
(a)that there was no legal principle to the effect that recording a conviction rather than making a non-conviction order could never be found to be manifestly excessive; and
(b)that there was no particular restriction on the kinds of offences in respect of which non-conviction orders could be made (see, for instance, Byron v Lemesurier [2012] ACTSC 172 (act of indecency); Jolejole v Walizada [2010] ACTSC 146 (act of indecency and attempted act of indecency); R v Ang [2014] ACTCA 17(act of indecency); HA v Vince [2014] ACTSC 106 (property damage); Tuckey v Ede [2010] ACTSC 95 (common assault); Roseby v Harman [2014] ACTSC 125 (driving with prescribed concentration of alcohol); Davison v Craig [2015] ACTSC 390 (assault occasioning actual bodily harm); Talukder v Dunbar [2009] ACTSC 42 (common assault); The Queen v CV [2013] ACTCA 22 (engaging in sexual intercourse with a child above the age of 10 years but under 16 years).
Conclusions
Subject to comments below about the appellant’s sexual orientation, I am satisfied that all the matters identified at [29] above were relevant in sentencing the appellant under s 33(1) of the Crimes (Sentencing) Act, and that most if not all of them would also have been relevant in a consideration of whether an order under s 17 was appropriate.
I place little reliance on the appellant’s homosexual orientation; it seems to me that the proposition that a man with a generally homosexual orientation would obtain no sexual gratification from any kind of contact with a woman in any circumstances depends on a very unsophisticated view of the complexities of human sexuality, and in any case it is irrelevant in a case in which there is no argument that the appellant was in fact the perpetrator of the relevant acts.
Sexual gratification can be obtained in all sorts of different ways, and for many people is not absolutely restricted to encounters with a person of one particular sex. For some people, sexual gratification may be found in inflicting pain or humiliation on another person, not necessarily only on people of one sex and not necessarily only on people of the same sex as one’s preferred sexual partners. For these reasons, the appellant’s identification as having a homosexual orientation does not exclude the possibility that sexual gratification was the purpose of his offending.
I do not intend to attribute to the appellant any motive of a kind I have just mentioned. As already indicated, his motive for the offending conduct remains completely obscure. What I have said is only to explain why I consider his homosexual orientation to be irrelevant in seeking to identify, or to limit, his possible motives.
Having regard to all the matters identified at [29] above, and noting in particular:
(a)the inexplicable nature of the offences coupled with the appellant’s emotional distress at the relevant period; and
(b)the dramatic impact of the convictions on the appellant’s future;
I am satisfied that the recording of convictions in this case was manifestly excessive.
Having reached that conclusion, I do not need to consider the other grounds of appeal, and I must re-sentence the appellant.
Other matters
There are, however, several further comments I wish to make about the sentencing in this matter.
A manifest excess appeal ground does not require the identification of a specific sentencing error, but requires a finding, however expressed, that the outcome of the sentencing process is simply wrong (House v The King (1936) 55 CLR 499 at 505; Bugmy v The Queen (2013) 249 CLR 571 at [24], [51] and [52]). However, this is, in my view, one of the rare cases in which it is possible to identify some of the points at which the sentencing process went wrong so as to produce a wrong outcome. Although unnecessary for the purpose of determining the appeal, it is worthwhile mentioning these matters for future reference.
First, her Honour rejected the request for a non-conviction order without properly considering the provisions of s 17. In particular, her Honour in my view misdirected herself by referring to s 17 as containing “criteria”, presumably criteria for the making of a non-conviction order.
Section 17 sets out matters that must be considered in deciding whether to make a non-conviction order (s 17(3)), and matters that may be considered, being “anything else the court considers relevant” (s 17(4)). It does not set out criteria that must be satisfied before a non-conviction order may be made, as is done in various other sections of the legislation (see, for instance, s 27(1) of the Crimes (Sentencing) Act, which sets out what are properly described as criteria for the making of a deferred sentence order). Her Honour’s reference to the appellant’s case as not satisfying the s 17 criteria suggests that her Honour has misdirected herself to the effect that s 17 requires certain conditions, or criteria, to be satisfied before there is power to make a non-conviction order.
Counsel initially argued that her Honour’s mention of some of the s 17(3) matters, after she appeared to have ruled out a non-conviction order because the offences and the effect on the victim were too serious, indicated that she was not applying s 17 as setting criteria for the making of a non-conviction order but was adverting to all the factors required to be considered under that section. However, counsel conceded that her Honour was required to consider those matters under s 33 of the Crimes (Sentencing) Act even if she had concluded as a result of the nature of the offence and the effect on the victim that s 17 was not available, and that therefore her Honour’s comments did not require the inference that she had engaged in a proper application of s 17 despite not mentioning it again after expressing her views on the seriousness of the offences.
The suggestion that her Honour misdirected herself might also be borne out by the fact that her Honour did not in fact address all the matters required by s 17(3) to be considered in deciding whether to make a non-conviction order. It is true that her Honour commented at length about the seriousness of the offence and the effect it had had on the victim. She also commented on the appellant’s character, noting that he had no prior convictions for relevant offences; however, her comments appeared to be aimed not at his character apart from the commission of the relevant offences but at what the relevant offences said about his character as a whole. Her Honour did not, however, address the appellant’s antecedents to the extent, if any, that they go beyond criminal history, and she did not refer to his age, health or mental condition.
Furthermore, her Honour’s approach to the question of the hardships that might be caused to the appellant by the recording of convictions in the matter could have been compromised by the incorrect information provided by the prosecutor about the impact of the Working with Vulnerable People Act (at [23] above).
It is apparent from the transcript that her Honour did not engage with the detail of the relevant submissions being made by defence counsel. This might be understandable given the volume of material provided, although that material was concisely explained by defence counsel. Furthermore, given that her Honour was effectively misled by the prosecutor’s submission about the impact of the Working with Vulnerable People Act, her Honour might not unreasonably have concluded that there was no need for her to concern herself with the separate impact of recording a conviction.
Furthermore, in responding to the general proposition that considerable and ongoing hardship would be caused to the appellant by the recording of convictions, her Honour made comments implying that she was obliged to record convictions, and impose those hardships on the appellant, by the requirement to give justice to the victim.
A sentencing proceeding is not simply a matter of giving justice as between the offender and the victim. In Munda v Western Australia (2013) 249 CLR 600 (Munda), the High Court made the following comments at [54]:
the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.
Recognising the harm to the victim is certainly one of the sentencing purposes identified in s 7 of the Crimes (Sentencing) Act, but it is not the only one. The full list is as follows:
(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender;
(g)to recognise the harm done to the victim of the crime and the community.
In Munda, the High Court went on at [58]:
As Gleeson CJ said in Engert - :
"[T]he interplay of the considerations relevant to sentencing may be complex ... In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. ...
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances."
[citations omitted]
Thus, her Honour may have led herself into error by considering that her primary or perhaps only obligation was to “give justice” to the victim.
Orders
For the reasons summarised at [39] above, the appeal is upheld.
I set aside the convictions recorded in respect of the two offences, and the sentences imposed, and instead make a good behaviour order under s 17(2)(b) of the Crimes (Sentencing) Act in respect of each offence. The good behaviour orders are to run for 18 months each, and to be subject to the core conditions only.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 29 March 2016 |
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