Police v MORRIS - [2012] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MORRIS
[2012] SASC 82
Judgment of The Honourable Justice White
29 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Respondent convicted by Magistrate of assasult - fined $200 and ordered to pay levies and costs totalling $2,300 - no conviction recorded.
Crown appeal against sentence - whether sentence manifestly inadequate - whether Magistrate erred in not recording a conviction - whether assault more serious because of previous antipathy between respondent and victim - whether Magistrate failed to take account of absence of contrition on part of respondent - whether sentence failed appropriately to reflect elements of personal and general deterrence - whether Magistrate erred in concluding that respondent unlikely to reoffend.
Held: appeal dismissed - sentence not manifestly inadequate - Magistrate did not err in not recording a conviction - assault not more serious because of previous antipathy between respondent and victim - Magistrate did not fail to take account of absence of contrition on part of respondent - overall sentence reflected the elements of personal and general deterrence sufficiently - Magistrate did not err in concluding that respondent unlikely to reoffend.
Criminal Law Consolidation Act 1935 (SA) s 20; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Birch v Fitzgerald (1975) 11 SASR 114; Grzybek v Police [2008] SASC 161, considered.

POLICE v MORRIS
[2012] SASC 82
Magistrates Appeal

WHITE J: Following a six day trial, a Magistrate found the respondent guilty of assault.[1] However, the Magistrate found good reason not to record a conviction. He imposed a fine of $200 and ordered the respondent to pay levies and costs totalling $2,300.
[1] Criminal Law Consolidation Act 1935 (SA) s 20(3).
The Police now appeal against that sentence, contending that it is manifestly inadequate, and that a conviction should have been recorded.
The circumstances of the offence
On 16 August 2009, the Under 14 teams of the St Augustine’s Soccer Club and the Ingle Farm Soccer Club played each other. The respondent was the coach of the St Augustine team and his son, CM, was a player on the team.
During the game, CM was struck by an unknown Ingle Farm opponent. The referee called the respondent to attend to his son. Unfortunately, the respondent did not confine himself to attending to CM, and engaged in an unpleasant exchange with the referee. This led to him being ordered off the pitch and dismissed from the game. This meant that the respondent had to vacate the coach’s box.
The respondent then called on the St Augustine team to stage a walk out, but this was resisted by team members and their parents. He then started to walk to his car. In doing so, he had to walk past a group of Ingle Farm parents who included the victim of his assault, Mr Klappers. Some in the group taunted the respondent.
The respondent then deviated towards Mr Klappers and grabbed him by the neck in a jolting action, causing his head to jerk. This was the assault with which the respondent was charged. It was not the kind of assault which was likely to produce any injury.
Considered as a whole, the incident does not reflect well on the respondent and the particular Ingle Farm parents and supporters in relation to what was, after all, a game of Sunday morning underage soccer.
The sentencing decision
The maximum penalty for the offence is imprisonment for two years.[2]
[2] Criminal Law Consolidation Act 1935 (SA) s 20(3)(a).
The Magistrate referred to the respondent’s position of responsibility and influence in relation to an underage soccer team. He considered that the respondent had modelled poor conduct to those in his charge, saying that this made the offence more serious.
The respondent is 38 years old, in regular employment and is the sole income provider for his wife and five children. He has no previous convictions at all, and otherwise is of good character. The Magistrate considered that his ten years as coach to underage teams and the positions he has held as an officer in the St Augustine’s Soccer Club were to his credit.
The Magistrate invoked s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“CLSA”) which provides:
16—Imposition of penalty without conviction
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.
As can be seen, s 16 empowers a court in defined circumstances to impose a penalty without recording a conviction. The court must be considering the imposition of a fine or a sentence of community service (or both), be satisfied that the defendant is unlikely to commit the offence again, and be satisfied that there is good reason, having regard to the personal circumstances of the defendant, the trifling nature of the offence, and any extenuating circumstances, to refrain from recording a conviction.
The Magistrate considered it unlikely that the appellant would commit an offence of assault again, and that his personal circumstances justified him not recording a conviction.
Consideration of Appeal
The Police contend that the Magistrate’s approach to the fixation of the fine and the decision not to record a conviction was affected a number of errors, which I will discuss in turn.
Previous Antipathy between the Respondent and the Victim
The appellant accepted that the respondent’s assault, considered by itself, could be regarded as a relatively isolated act, attributable to the respondent’s emotional response to the injustice which he perceived had been done to his son and to the subsequent conduct of the Ingle Farm supporters. It contended, however, that the conduct had a more serious character because of a history of antipathy between the respondent and his victim. Mr Klapper had previously replaced the respondent as Chairman of the St Augustine’s Soccer Club and, in other respects, it seems that their relationship was marked by dislike.
The appellant submitted that the previous antipathy meant that the respondent’s assault was “significantly more targetted” than may otherwise appear. Instead of the respondent’s conduct being an unfocussed loss of control, he had deliberately chosen to vent his anger on this particular victim. The Magistrate had overlooked this feature of the assault and had, so it was submitted, thereby erred in the sentencing decision.
I do not accept this submission. The pre‑existing antipathy between the respondent and the victim helps explain, without excusing, the respondent’s conduct. It assists in understanding why the respondent selected the victim amongst the group of Ingle Farm supporters as the target of his assault. However, there is no suggestion that the assault was premeditated, or that the respondent took advantage of the circumstances to effect some form of revenge or retribution on the victim.
Further, and in any event, assaults which are random and unpredictable are often more serious. That is because they can be more frightening for an innocent and unsuspecting victim.
Absence of Expression of Contrition
The appellant contended that the Magistrate had failed to take into account the absence of any expression of remorse or contrition by the respondent, pointing out that the Magistrate had not referred to this feature of the case at all and submitting that the leniency of the sentence imposed was in itself evidence of such a failure by the Magistrate. The submission was that even if a fine of $200 without a conviction may have been appropriate following a plea of guilty with expressions of contrition, it was inappropriate in the respondent’s case.
It is true that the Magistrate did not refer expressly to the absence of any expression of remorse or contrition. However, I do not consider that the Magistrate overlooked this aspect of the case. The Magistrate referred to, and rejected, the attempt by the respondent during his evidence in the trial to portray himself as the maligned party subject to insult and taunts, and reacting to an injustice to his son which had not been addressed on the pitch.
Further, the Magistrate sentenced the respondent immediately after delivering his ex tempore judgment at the end of the trial. It was obvious in the circumstances that the respondent was not expressing contrition. Further again, even if the respondent had expressed contrition, it is doubtful that much significance could have been attached to it. Such an expression following a six day trial in which the respondent had, throughout, maintained his innocence, may not have been regarded as particularly significant.
The absence of any expression of contrition or remorse was not of course an aggravating factor. Accused persons are not to be punished because they have pleaded not guilty, and the respondent was not to be sentenced more severely because he was found guilty after a trial. Contrition, repentance and remorse are mitigating factors. Their absence meant that the respondent could not be given any lenience on that account. As has been observed previously, there is some times a fine line between giving a defendant credit for the expression of remorse or contrition reflected in a plea of guilty, on the one hand, and not punishing a defendant for a plea of not guilty on the other. Nevertheless, that line must be observed.
I agree that the absence of remorse or contrition was a relevant factor, but it was not so significant as, considered by itself, to indicate error by the Magistrate.
The Need for Deterrence
Next, the appellant submitted that the Magistrate’s sentence did not reflect appropriately the elements of personal and general deterrence.
The appellant subjected the Magistrate’s sentencing remarks to close analysis and drew attention to the fact that the Magistrate had not referred at all to the issue of deterrence in his sentencing remarks.
However, it is appropriate again to keep in mind that the sentencing remarks were of an ex tempore kind, as the Magistrate sentenced the respondent immediately after the end of the trial. The Magistrate had given extensive ex tempore reasons for the conviction and, as the respondent’s counsel informed this Court, completed the trial and sentencing well after the completion of usual Court sitting hours. In these circumstances, it is understandable that the Magistrate’s sentencing remarks were brief. Further, as I have previously observed, Magistrates are not expected to give full sentencing remarks of the kind given by the Supreme and District Courts when sentencing for more serious offences.[3] The different circumstances in which magistrates will commonly impose sentence, of which this case is an example, should be kept in mind.
[3] Grzybek v Police [2008] SASC 161 at [21].
I agree that considerations of deterrence, both general and personal, are usually important in sentences for the offence of assault. Courts should be concerned to ensure that it is brought home to an individual defendant and to the public generally, that the infliction of violence on another is not acceptable. Bray CJ referred to a number of relevant considerations in Birch v Fitzgerald::[4]
Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated.[5]
Thus, there is some force in the appellant’s submission that the Magistrate’s sentence fails to achieve the necessary deterrent effect.
[4] (1975) 11 SASR 114.
[5] Ibid at 116-7.
However, there are countervailing considerations. The Magistrate was able to observe the respondent during the course of the trial and, in particular, during the course of his own evidence. The Magistrate also heard evidence from a number of those who were present at the soccer match and who observed the events resulting in the respondent being charged. Accordingly, the Magistrate was in a very good position to assess the respondent, the context in which his offence was committed, and his culpability. It is reasonable to suppose that these considerations are reflected in the sentence. The advantage which the Magistrate had in this respect is not one which is available to this Court to the same extent.
Further, the Magistrate made pecuniary orders which result in the respondent having to pay a total of $2,500, quite apart from the costs which he incurred in defending himself in a six day trial. It is reasonable to infer that the impact of these orders too will have a deterrent effect.
The Decision not to Record a Conviction
The appellant contended that the Magistrate had erred in his application of s 16 of the CLSA and in particular in concluding that the appellant is unlikely to commit a similar offence again. The Magistrate mentioned in this respect the fact that the respondent has, as a result of this incident, been suspended from coaching soccer teams for a period of 10 years.
I agree with the appellant that, if this was the sole reason for the Magistrate’s satisfaction that the respondent is unlikely to offend again, it would not have been sufficient. The fact that the respondent is prohibited from coaching soccer teams may make it less likely that he will commit an assault in the context of a soccer match in which he is involved as a coach, but it says nothing at all about the improbability of him committing an assault in other circumstances. It could be said that the respondent’s hot-headed response on this occasion may well be replicated if he is subjected to stresses of a generally similar kind in other circumstances in the future. This feature of the Magistrate’s reasons is troubling.
However, on reflection, I consider that a fair reading of the Magistrate’s ex tempore reasons indicates that this was not the only matter upon which the Magistrate relied for his conclusion that the appellant is unlikely to offend again. The Magistrate referred also to the appellant’s good character, employment status and family responsibilities. These matters are also to be considered when assessing the prospects of the appellant offending again.
It was also appropriate for the Magistrate to take account of the salutary effect of the prosecution on the respondent. He has had to undergo the trouble, stress and expense of a six day trial. This is likely to have brought home to him the severe consequences of conduct of the present kind. I note again the opportunity which the Magistrate had to assess the respondent during the trial.
Those matters, coupled with the effects of the coaching ban, preclude this Court, in my opinion, from finding that the Magistrate was in error in concluding that the respondent was unlikely to commit the offence again.
The appellant also made submissions to the effect that there were insufficient factors in the appellant’s personal circumstances to enliven the application of s 16. I respectfully disagree. The Magistrate was entitled to conclude that the appellant is of good character and is otherwise a responsible member of the community.
The sentence which the Magistrate imposed is undoubtedly merciful. The respondent could well have received a more severe fine, and a conviction could well have been recorded. However, I am not satisfied that the Magistrate made any of the errors which the appellant’s submissions attributed to him, and I am not satisfied that the sentence is manifestly inadequate.
Conclusion
For the reasons given above, I dismiss the appeal.