Police v Tyrie - [2009] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TYRIE
[2009] SASC 113
Judgment of The Honourable Chief Justice Doyle
4 May 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Respondent found guilty by a magistrate after a trial of three counts of indecent assault - offences committed against three complainants, all under 18 years of age - offences occurred at a sporting event - Magistrate declined to record convictions upon the respondent entering into a bond to be of good behaviour for a period of one year - Crown appeal against penalty imposed by Magistrate - whether penalty imposed manifestly inadequate.
Held: offences not at the lowest end of the scale of seriousness for such offences - respondent took advantage of the circumstances in a purposeful way - offences serious - no error on the face of the Magistrate's reasons - the penalty imposed by the Magistrate indicated that the seriousness of the offences, the need for deterrence, and the public interest in a conviction being recorded were not given sufficient weight - the error made was a signifcant one calling for intervention - appeal allowed - conviction recorded on each count.
Magistrates Court Rules 1992 r 19.05; Criminal Law Consolidation Act 1935 (SA) s 56(1); Supreme Court Civil Rules 2006 r 290(1)(e); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ec), s 10(4), s 39(1), referred to.
R v Yousef (2005) 155 A Crim R 134, applied.
Police v Cadd (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295, discussed.

POLICE v TYRIE
[2009] SASC 113
Magistrates Appeal: Criminal

DOYLE CJ: After a trial in the Magistrates Court, Mr Tyrie was found guilty of three counts of indecent assault. The Magistrate declined to record convictions in respect of the offences. The Magistrate discharged Mr Tyrie upon him entering into a bond in the amount of $10 to be of good behaviour for a period of two years. A condition of the bond requires Mr Tyrie to appear before a court for sentencing in the event that Mr Tyrie fails to comply with the obligations imposed by the bond. The Police (see r 19.05 of the Magistrates Court Rules 1992) have appealed against the penalty imposed by the Magistrate on the ground that the penalty imposed is manifestly inadequate. The complaint on appeal is that the Magistrate should have recorded a conviction on each count.
Background
Mr Tyrie was charged on a complaint with three counts of indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for a basic offence against s 56(1), which these offences were, is eight years imprisonment. The three charges alleged instances of indecent assault committed by Mr Tyrie on 10 November 2007 at Santos Stadium against three separate…

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 Police v Tyrie

Details

AGLC: Police v Tyrie [2009] SASC 113
Case: [2009] SASC 113
Decision Date: 4 May 2009

CaseChat Overview and Summary

In the case of Police v Tyrie, the respondent was found guilty by a magistrate of three counts of indecent assault against three complainants under the age of 18. The offences occurred at a sporting event, and the magistrate declined to record convictions upon the respondent entering into a bond to be of good behaviour for one year. The Crown appealed against the penalty imposed by the magistrate, arguing that it was manifestly inadequate. The appeal raised issues concerning the principles applied by the appellate court to Crown appeals and the discretion to record a conviction in sentencing. The court had to decide whether the penalty imposed by the magistrate was manifestly inadequate and if there was any error in the magistrate's reasoning that warranted intervention by the appellate court.

The court held that the offences were not at the lowest end of the scale of seriousness for such offences, as the respondent took advantage of the circumstances in a purposeful way. The court found that the offences were serious and that there was no error on the face of the magistrate's reasons. However, the penalty imposed by the magistrate indicated that the seriousness of the offences, the need for deterrence, and the public interest in a conviction being recorded were not given sufficient weight. The court considered that the error made was significant and called for intervention by the Court. The appeal was allowed, and the conviction was recorded on each count.

The court emphasised the limited circumstances in which an appeal court would allow an appeal instituted by the prosecution against a sentence imposed by a lower court. The court considered the submissions by counsel and rejected the argument that the offences were at the lowest end of the scale of seriousness. The court also considered the protection of young women from "sexual predators" and the public significance of recording a conviction. The court acknowledged the substantial mitigating factors but found that the adverse impact on the respondent of recording a conviction was warranted in all the circumstances. The court concluded that the appeal should be allowed and that the order of the Magistrates Court should be varied by substituting an order that on each count a conviction be recorded, but subject to that, the orders made by the Magistrate should stand.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Be that as it may, I consider that the error made by the Magistrate is a significant one, even though to some the difference between a decision to record a conviction or not record a conviction might seem minor. I consider that to refrain from recording a conviction in the present case is to fail in a significant way to recognise the seriousness of the offending, the need for deterrence and the public interest in the recording of a conviction. I consider that the error is one that calls for intervention by the Court. I consider that the appeal should be allowed.Conclusion I allow the appeal. I order that the order of the Magistrates Court be varied by substituting an order that on each count a conviction be recorded, but subject to that the orders made by the Magistrate should stand.

Ratio Decidendi

Legal Principle Established

Ms Davison emphasised the limited circumstances in which an appeal court will allow an appeal instituted by the prosecution against a sentence imposed by a lower court.Consideration of submissions I do not accept the submission by Ms Davison that the offences are at the lowest end of the scale of seriousness for such offences. Mr Tyrie took advantage of the situation at Santos Stadium in a deliberate way. Making use of circumstances such as these to obtain sexual gratification has a troubling aspect to it. The young women had done nothing to encourage him. The fact that Mr Tyrie committed three separate offences is significant, as is the apparently purposeful manner in which he went about committing the offences. While the offences are not high in the scale of seriousness, they are serious offences nevertheless, and, as I have said, I do not agree that they are at the lowest end of the scale. The Magistrate’s report suggests that the Magistrate may have treated the offences as less serious than they were, because his report suggests that he accepted the submission by Ms Davison. The Magistrate’s reasons also suggest that he may have failed to have due regard to the provisions of s 10(1)(ec) and s 10(4) of the Sentencing Act (set out above). The Sentencing Act does not define “child” or “children” for the purposes of s 10. In law, the complainants were children, being under the age of 18 years. Having regard to their respective ages, the provisions referred to might not be as significant as they would be if the complainants were younger. But the protection of young women from “sexual predators” remains a relevant factor in the present case, giving rise to the need to pay careful attention to the question of deterrence. There was a predatory aspect to the offending conduct, and the circumstances suggest that Mr Tyrie was taking advantage of the fact that the complainants were young women, who might be less likely to complain than if they were older. The Magistrate’s report also suggests that he failed to give due weight to the public significance of recording a conviction. Recording a conviction expresses community condemnation of the offending conduct, and itself has a deterrent effect: see R v Yousef [2005] SASC 203; (2005) 155 A Crim R 134 at [60] Sulan and Layton JJ. Recording a conviction may also have a significant effect on an offender’s prospects of employment, and may have the effect of warning future employers and others of a relevant aspect of the offender’s character. These are matters that require consideration in the present case. However, I acknowledge at the same time that it is also relevant to consider whether the adverse impact on Mr Tyrie of recording a conviction is, in all the circumstances, warranted. I also acknowledge the substantial mitigating factors identified by Ms Davison, and acknowledge that these matters are relevant to the question of whether it was open to the Magistrate to decide that there was “good reason” for the purposes of s 39(1) of the Sentencing Act to refrain from recording a conviction.