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 complainants. Although Mr Tyrie was charged with only three counts of indecent assault, it was the prosecution case that he touched each complainant twice on the bottom.
On 10 November 2007 an athletics competition took place at Santos Stadium. There were many people at the Stadium either to watch or to participate in the competition. The three complainants were competitors. At the time of the offences they were standing together in the marshalling area of the track. They were wearing running shorts and cropped tops. They were waiting to compete in a relay team event.
One of the complainants (“R”), who was 17 at the time of the incident, gave evidence that a young male competitor touched her on two separate occasions on her bottom. R gave evidence that she saw the man touch the two other complainants on their bottoms. R confronted the man and asked him what he was doing. The man responded by asking R what she was talking about.
Another of the complainants, (“H”), who was 16 at the time of the incident, gave evidence that as she was standing in a group in the marshalling area, she heard R say that she had been touched on her bottom by a young male whom R then pointed out. H did not see the male touch R on that occasion. She observed the young male as he moved around the marshalling area. Shortly after, she saw the young man walk up to the group and brush his hand against R’s bottom as he walked past. According to H, shortly after touching R for the second time, the young man walked behind her at which time she felt someone touch her bottom with the back of the person’s hand. H gave evidence that the same thing happened again, and on this occasion she noticed that there was a space behind her, so there was no need for anyone to walk very close to her to pass her. H kept watching the man. She saw the man walk past the group again, this time touching the third complainant (“W”). According to H, R walked after the man and remonstrated with him.
W was 16 years old at the time of the incidents. As she was standing in the marshalling area by herself, she felt someone brush her bottom. At first she thought that it was an accident. She saw a group of girls which included the other two complainants, and she walked over and joined the group. As she was standing in the group, she saw a young man walk past the group. W said that as he walked past H, the man’s hand touched H’s bottom. The man touched H with the back of his hand, and W got the impression that the man deliberately touched H. As she was leaving the marshalling area to participate in a race, W felt someone touch her bottom. She turned around to see the young man who she had seen earlier. It was at this point that R confronted the man about what had happened.
In a record of an interview between the police and Mr Tyrie tendered by the prosecution, Mr Tyrie confirms that on 10 November 2007, he was at Santos Stadium. Mr Tyrie denied touching any teenage girls on the bottom. He said that if he had done so, it would have been unintentional. Mr Tyrie confirmed that he had been confronted by a girl who alleged that he had inappropriately touched her and her friends.
Mr Tyrie did not give evidence. Mr Tyrie’s coach gave evidence that he was at Santos Stadium on 10 November 2007, but that he could not remember if he watched Mr Tyrie on that day. The coach gave evidence that Mr Tyrie trained in a squad that included female athletes, that he had never seen Mr Tyrie behave inappropriately, and that it had never been alleged that Mr Tyrie had behaved inappropriately. The coach gave evidence as to Mr Tyrie’s good character.
After reviewing the evidence, the Magistrate found that the charges had been made out beyond reasonable doubt. Sentencing submissions were then made. After receiving submissions on sentence, the Magistrate made his decision giving oral reasons for his decision. The record of his reasons has since been erased by mistake.
An affidavit of the police prosecutor who made submissions on sentence records the reasons of the Magistrate, to the extent that the prosecutor could recall those reasons. According to the prosecutor, the Magistrate noted that Mr Tyrie lacked remorse, and that the offences were serious. The Magistrate described the offences as an affront to the complainants. The Magistrate considered that Mr Tyrie was attracted to the complainants and that he had attempted to disguise his actions as unintentional.
The prosecutor recorded in his affidavit that the Magistrate summarised the offending as the actions of a stupid, immature young man. The Magistrate noted that Mr Tyrie had no prior record, and considered that he was otherwise of good character. The Magistrate formed the view that recording convictions in relation to the offences would have a devastating effect on Mr Tyrie, who was a personal trainer at the relevant time.
The Magistrate was asked to provide a report giving his reasons for imposing the bond: see r 290(1)(e) of the Supreme Court Civil Rules 2006. The Magistrate reported that he took into account the defendant’s age, good character, and lack of any prior criminal record. The Magistrate appears to have accepted a submission by Mr Tyrie’s counsel that the offending was at the very lowest end of the scale of seriousness for offences of their nature. Mr Tyrie’s employment as a personal trainer was taken into account, in addition to the effect of recording a conviction on Mr Tyrie’s prospects of obtaining employment. The Magistrate considered that Mr Tyrie’s prospects of rehabilitation were very good, and that he was unlikely to re-offend.
Submissions on appeal
Ms Cairney, counsel for the appellant, submits that the penalty imposed by the Magistrate is so inadequate that it discloses an error of principle. While the offending conduct in each instance was at the lower end of the scale of seriousness, the offending was nevertheless serious, involving three separate complainants. Ms Cairney pointed out that Mr Tyrie had committed uncharged acts of the same nature. She referred to the fact that the victims were young women, and that the offences occurred during a sporting event at a place where the community would expect young participants to be protected from such conduct.
Ms Cairney submits that, in all the circumstances, and particularly having regard to the need for deterrence, both personal and general, the penalty imposed by the Magistrate was so inadequate that it discloses an error of principle. She submits that the Magistrate must have failed to take into account, or must have failed to give sufficient weight to, the requirements of s 10(1)(ec) and s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) which provide:
10—Matters to be considered by sentencing court
(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(ec)in the case of a sexual offence committed against a child—the need to give proper effect to the policy stated in subsection (4);
…
(4) A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.
…
Ms Cairney submits that in sentencing Mr Tyrie, the offences being committed against children participating in a sporting event, particular regard should be had to the expectation that children will be protected from predatory sexual behaviour by imposing deterrent sentences.
She submits that, notwithstanding the limited circumstances in which a court will allow a prosecution appeal against sentence, the error by the Magistrate is such that it calls for the intervention of this Court.
Ms Davison, who appeared for Mr Tyrie, submits that the penalty imposed by the Magistrate is not manifestly inadequate. Ms Davison emphasises Mr Tyrie’s youth, and the effect that recording a conviction would have on Mr Tyrie and his prospects of employment. Ms Davison submits that the offences committed by Mr Tyrie are at the lowest end of the range of offences of this nature. She submits that Mr Tyrie was of good character and had good prospects of rehabilitation. She submits that the Magistrate was entitled to take a lenient approach to sentencing Mr Tyrie as a first offender.
Ms Davison submits that the Magistrate gave effect to considerations of deterrence. She submits that the inclusion of the term in the bond which would require Mr Tyrie to return to be sentenced if he breached the bond is an effective means of deterring Mr Tyrie from engaging in future wrongdoing.
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.
Weighing up all of the circumstances, I consider that the Magistrate erred in acting as he did. The seriousness of the offences, the need for deterrence, and the public interest in a conviction being recorded, all outweighed the circumstances personal to Mr Tyrie upon which the Magistrate relied and upon which Ms Davison relies in answer to the submissions for the appellant. In my opinion it was not open to the Magistrate to refrain from recording a conviction, when all of the matters are given due consideration. While no error appears on the face of the Magistrate’s reasons, as reflected by his report and by the prosecutor’s affidavit, the Magistrate must have failed to give due weight to the matters referred to by me.
It does not follow that the appeal must be allowed. Differing views are expressed on this point in Police v Cadd (1997) 69 SASR 150. The majority considered that the restrictions on prosecution appeals that were expounded by the High Court in Everett v The Queen (1994) 181 CLR 295 apply equally to prosecution appeals against sentences imposed by the Magistrates Court: Doyle CJ at 156-159, Duggan J at 172 and Mullighan J at 173-174. A contrary view was expressed by Lander J at 196 and by Bleby J at 205. In the present case there is no question of a custodial sentence, and so it is not apparent that the principle expounded in Everett applies in any event.
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.