R v Stubberfield - [2010] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STUBBERFIELD
[2010] SASC 9
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
4 February 2010
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
Appeal against sentence - following plea of guilty, defendant and appellant convicted of charge of assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA) - sentence of four months and two weeks’ imprisonment imposed, suspended on entry into good behaviour bond of two years - whether sentencing Judge erred in recording a conviction - whether Judge erred in deciding there was no evidence that defendant's employment would be adversely affected if a conviction was recorded - whether Judge erred in requiring defendant to produce evidence that his employment would be adversely affected if conviction was recorded when prosecution accepted that it was open to Judge to proceed without recording conviction and did not oppose this course.
Held: appeal allowed - procedural unfairness occasioned by failure of Judge to indicate that submissions put in mitigation by the defendant and not disputed by the prosecution, might not be accepted - sentencing Judge failed to give sufficient weight to the defendant’s offer of reparation as a matter of mitigation - sentence considered afresh - good reason to proceed without recording a conviction pursuant to section 39 of the Criminal Law (Sentencing) Act 1988 (SA) - impact on defendant's employment, defendant's lack of antecedents and the unusual circumstances of the assault warrant merciful approach in circumstances - conviction and sentence imposed by sentencing Judge set aside - defendant released without conviction on entry into good behaviour bond.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 16 and s 39; Public Sector Management Act 1995 (SA) s 57 and s 60, referred to.
R v Perre (1986) 41 SASR 105; R v Lobban (2001) 80 SASR 550; R v Haydon (2001) 80 SASR 560; Markarian v R (2005) 228 CLR 357; Dinsdale v R (2000) 202 CLR 321; House v R (1936) 55 CLR 499; The Queen v Robertson (1984) 115 LSJS 51; Matulich v Police [2007] SASC 440; Radjevic v Police (1997) 67 SASR 478; Kovacevic v Mills (2000) 76 SASR 404; SA Police v John (1995) 181 LSJS 20; O’Keefe (1992) 60 A Crim R 201; R v Allen [2005] QCA 73; Hodgins v Police [2008] SASC 176; R v Briese (1997) 92 A Crim R 75; Attorney-General v Smith [2002] TASSC 10; Zefi v Police [2003] SASC 218; Szep v Police [2003] SASC 144; O'Hanlon v SA Police (1994) 62 SASR 553; MacGregor v Police (1995) 66 SASR 269; Buttegieg v Police (1999) 74 SASR 229; McAvaney v Quigley (1992) 58 A Crim R 457, considered.

R v STUBBERFIELD
[2010] SASC 9
Court of Criminal Appeal Gray, Sulan and David JJ
THE COURT

This is an appeal against sentence.
Pursuant to an amended Information,[1] the defendant and appellant, Gavin John Stubberfield, was charged with assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA).[2] On 29 September 2009, following a plea of guilty, the defendant was convicted of this charge. A sentence of four months and two weeks imprisonment was imposed, suspended on entry into a good behaviour bond of two years in the amount of $500.00.
[1] The Information previously alleged the charge of unlawfully causing harm with intent to cause harm contrary to section 24(1) of the Criminal Law Consolidation Act 1935 (SA).
[2]    20—Assault
(1)A person commits an assault if the person, without the consent of another person (the victim)—
(a)     intentionally applies force (directly or indirectly) to the victim; or
(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)     there is a real possibility that the person will carry out the threat; or
(d)does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)accosts or impedes another in a threatening manner.
…
(4)A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 3 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.
Background
The offence occurred at Port Lincoln in the early hours of the morning on 22 December 2007. At the time of sentencing, the Judge summarised the circumstances of the offence. It is convenient to set out his remarks:
On the day in question you finished work and went to a local hotel with some friends. You consumed one or two beers, you were invited to attend a party. At the party the victim was carrying a package of hot chips. He was drunk and acting in an obnoxious manner. At one stage he spilt chips on the floor and refused to pick them up after several people, including yourself, asked him to do so. He was eventually told the [sic] leave. You followed him through the front door to ensure that he did. As that was happening he became agitated and pushed you in the chest.
It is not clear from the declarations who pushed whom first. You noticed that his fists were clenched and you thought he was going to punch you, so you decided to get in first. You struck a blow which must have been most significant. You punched him in the mouth and as a consequence he suffered very significant injuries to his front teeth and gums. …
It is instructive to note that the prosecution accepted that excessive self-defence via a pre-emptive single punch was the proper factual basis for sentencing.
The injuries sustained included the displacement of a number of the victim’s upper teeth and a maxillary fracture. He subsequently required surgery to reposition the displaced teeth with the application of a wire splint. The statement of a dental specialist indicates that when the victim was last seen, the initial phase of his injury had resolved, although there was some potential for the development of problems in the future.
It is to be observed that the defendant offered to pay the victim a significant sum by way of compensation, however the Judge declined to order payment of such a sum at the time of sentencing. The Judge did not appear to treat this offer of reparation as a mitigatory matter.
At the time of sentencing submissions, counsel for the defendant contended that in the circumstances, the Judge ought to exercise his discretion to proceed without recording a conviction pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA). Counsel emphasised the fact that a conviction could result in the defendant’s losing his position of employment as a prison warder. When assessing the impact a conviction for the offence would have on the defendant’s employment, the Judge observed:
For three and a half years you have been a prison warden [sic]. You were concerned about losing your job at the prison if you receive a conviction for this offence. There is really no evidence upon which I can act as to that matter. That is nothing more than a question which has been asked.
When fixing penalty the Judge noted the seriousness of the assault and the need for deterrence, both general and personal, before declining to proceed without recording a conviction:
With offences such as this, general deterrence and personal deterrence are important considerations. The offending is serious. It has obviously caused your victim much physical and emotional distress. I accept that you are sorry for your behaviour and that you realise that it has had a profound impact on your life, as well as the life of your victim.
The law has an obligation to protect people from serious assaults. As I said, the question of general deterrence is important. The assault was serious, that is demonstrated by the injuries.
Your counsel suggested that I should deal with the matter without recording a conviction. Because of the seriousness of the assault I am unable to deal with the matter in that way.
But for your plea I would have fixed a sentence of imprisonment for six months. After taking your plea into account I arrive at a term of imprisonment for four months and two weeks. The sentence will be suspended if you enter into a bond in the sum of $500 to be of good behaviour for two years.
The Appeal
The defendant appeals against the sentence imposed by the Judge and, specifically, against the recording of a conviction.
The grounds of appeal included that the Judge erred in deciding that there was no evidence that the defendant’s employment would be adversely affected if a conviction was recorded. It was further contended that the Judge erred in requiring the defendant to produce evidence that his employment would be adversely affected if a conviction was recorded, despite the fact that this effect was not challenged by the prosecution and the prosecution did not oppose the defendant’s request not to record a conviction.
Procedural Fairness
Prior to sentencing, the Judge did not indicate that he was proposing to reject the defendant’s submission that the recording of a conviction would have a deleterious impact on his employment. The Judge when sentencing observed that there was no evidence upon which he could act, as to this impact. The Judge did not provide the defendant with the opportunity to produce evidence that his employment would be adversely affected if a conviction was recorded.
It is to be observed that the prosecution accepted that the discretion pursuant to section 16 of the Sentencing Act to proceed without recording a conviction was available to the sentencing Judge. Further, the prosecution did not oppose the defendant’s request that the Judge not record a conviction.
The rejection of the defendant’s submission without notice and without a possibility of producing evidence in support, gave rise to a procedural unfairness and an error in the sentencing process.
In Perre[3] King CJ observed that although it is ultimately for the Judge to determine the factual basis upon which sentence will be imposed, there are cases where an unfairness will be occasioned to the defendant if the Judge fails to indicate that the submissions as put have not been accepted:
There seems to be a misunderstanding abroad as to the respective roles of the judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence, or even concurrence, of counsel for the prosecution, nor the silence of the judge, will entitle counsel for the defence to assume that the judge will sentence upon the basis of his submissions.
In the present case, counsel put forward a version of the appellant's role which the learned sentencing Judge found to be in conflict with the inferences which he drew from the primary facts deposed to in the sworn statements. There was ample material to support those inferences and he was perfectly entitled to discard the appellant's version of his role.
[3] R v Perre (1986) 41 SASR 105 as cited in R v Lobban (2001) 80 SASR 550 at 554.
These remarks were adopted in Lobban.[4] In that case, the Court held that no unfairness was occasioned to the defendant by the Judge rejecting the fact asserted by the defendant by way of mitigation that he had suffered from Hepatitis C and was confined to his bed for a period of three months. The critical aspect in reaching this conclusion was that the defendant was on notice that the Crown disputed his submission to that effect and in those circumstances, the sentencing Judge was not obliged to inform the defendant that he might not accept the submission. In the course of his reasons, Martin J, with whom Mullighan and Bleby JJ agreed, observed:[5]
In R v Perre (1986) 41 SASR 105, King CJ pointed out that on a plea of guilty a sentencing judge is required ordinarily to determine the facts of the offending upon the basis of the sworn statements tendered by the prosecution. The statements now tendered by the prosecution are "verified" but not sworn. If an issue arises as to the primary facts disclosed by or to be inferred from those statements, and if resolution of the dispute is required for sentencing purposes, it may be necessary for a sentencing judge to undertake a disputed facts hearing. An issue having been joined, it is a matter for an offender whether or not to call evidence. A sentencing judge is not required to indicate any view of the facts. The offender is on notice that a view contrary to the offender's position is being urged upon the judge. No unfairness can arise because the judge does not indicate a view during the disputed facts hearing or submissions.
Different considerations may apply if specific issue has not been joined between the prosecution and an offender. As the majority of the High Court pointed out in a joint judgment in R v Olbrich (1999) 199 CLR 270, there is no general issue joined between the prosecution and an offender in sentencing proceedings (at 281). In my view, in the absence of specific joinder, the potential for unfairness exists.
[Emphasis added]
[4] R v Lobban (2001) 80 SASR 550.
[5] R v Lobban (2001) 80 SASR 550 at [17]-[18].
Martin J then adopted the observations of King CJ in Perre and continued:[6]
[6] R v Lobban (2001) 80 SASR 550 at [20]-[22], [24].
If a version of the criminal conduct put forward in submissions by an offender is inherently implausible or obviously contradicted by inferences plainly arising from the sworn statements, the remarks of King CJ in Perre are readily applicable. However, in other less obvious circumstances, in the absence of the prosecution taking issue with a version put forward in mitigation, an offender may be placed at an unfair disadvantage. Short of asking the judge whether the version put forward in submissions is accepted by the judge, an offender may not be in a position to decide whether it is necessary to call evidence. It is also appropriate to bear in mind that the Crown now takes a far more active role in sentencing proceedings than was the practice in 1986 when Perre was decided. In addition, in the following passage in Olbrich the High Court contemplated that it may be necessary to put an offender on notice of the need to call evidence (at 281):
"Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)"
There can be no inflexible rule. Each case must be determined according to its particular circumstances. The critical question is whether an offender, by some means, is on notice that a submission advanced in mitigation might not be accepted by the sentencing judge.
The same critical question arises in respect of matters of a personal nature put forward by an offender in mitigation of penalty. If issue is taken by the Crown, the offender is on notice that a different view is being put to the judge and that the judge might act on either view. In such circumstances, there is no requirement that a judge give an indication that the matter advanced in mitigation might not be accepted. Once on notice, it is a matter for an offender whether to call evidence to support a particular submission that is in dispute.
…
For these reasons, if a submission as to personal circumstances advanced in mitigation is not disputed by the Crown, or an offender is not on notice by some other means that a submission might not be accepted, in my opinion an offender is ordinarily entitled to assume that a sentencing judge will accept the submission at face value unless the judge indicates otherwise. The unfairness of a judge rejecting such a submission without notice is readily apparent.
[Emphasis added]
In Haydon[7] the Court emphasised the distinction between situations when a Judge might be required to put the defendant on notice that submissions advanced in mitigation were to be rejected, and situations where notice is not required:
In any event, the Judge did not accept the submission advanced for Mr Haydon. He was entitled to reject that submission on the basis of the evidentiary material before him. The Judge did more than reject the submission advanced in mitigation. He made an affirmative finding of matters adverse to the interests of Mr Haydon. He accepted the submission by the prosecutor. I have set out above two short extracts from the remarks of the sentencing judge, indicating the approach that he took. I am satisfied that the Judge made those findings on the basis of satisfaction beyond reasonable doubt. As noted above, the Judge said that the evidence "overwhelmingly" pointed to the conclusion that he had reached. I agree with the Judge.
There was no unfairness about this. Counsel for the Director made it clear before the Judge that he contested the submissions in mitigation, and sought a finding of circumstances of aggravation. The rival submissions before the Judge made it clear that there was a dispute that the Judge had to resolve. That must have been apparent to all participants. There was no need for the Judge to indicate to Mr Haydon's solicitor that the submissions in mitigation might not be accepted. They had been controverted by counsel for the Director. Fairness did not require the Judge to state the obvious.
Neither counsel sought to lead any evidence, or to cross-examine the makers of any of the statements before the Judge. It fell to the Judge to resolve the dispute on the basis of the materials before him, consistently with the principles stated in Olbrich, and that is what the Judge did.
The case is not one in which submissions were put forward relating to matters personal to the offender, of the kind as to which it is the practice for a judge to accept unless the submission is contested by the Crown or unless the Judge indicates that the matter advanced might not be accepted. I agree with what Martin J says in Lobban at [23]-[24] about such matters. In any event, the matters advanced were contested.
[Emphasis added]
[7] R v Haydon (2001) 80 SASR 560 at [31]-[34].

In the circumstances of the present proceeding, where the submissions put by the defendant were not disputed by the prosecution, there was a need for the Judge to indicate that the submissions in mitigation might not be accepted. Not to do so gave rise to a procedural unfairness. As a consequence of this error in the sentencing process, it is necessary to consider the sentence afresh.[8]
[8] Markarian v R (2005) 228 CLR 357; Dinsdale v R (2000) 202 CLR 321; House v R (1936) 55 CLR 499.
Reparation
As earlier observed, the defendant offered to make reparation to the victim. This offer was made in open court, both before the sentencing Judge and repeated on appeal. This Court was informed that at the time of sentencing a criminal injuries claim had been issued. As earlier discussed, the Judge appeared to give no weight to the offer of reparation when sentencing. In our view, the offer of reparation demonstrated a desire on the part of the defendant to make amends for his conduct and was also evidence of contrition and remorse.
Section 10(1)(e) of the Sentencing Act provides:
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:
…
(e)     any injury, loss or damage resulting from the offence;
and section 10(1)(f)(i), which provides:
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:
…
(f)    the degree to which the defendant has shown contrition for the offence—
(i)    by taking action to make reparation for any injury, loss or damage resulting from the offence
It is relevant to observe that sections 10(1)(e) and 10(1)(f) put into statutory form the common law as outlined in Robertson.[9]
[9]    The Queen v Robertson (1984) 115 LSJS 51 at 53.
In Matulich v Police[10] relevant authorities were reviewed and the following conclusions drawn. These conclusions are relevant to the present proceeding:
-Statutory recognition has been given to the relevance of restitution in the sentencing process through sections 10(1)(e) and 10(1)(f) of the Sentencing Act.
-These statutory provisions provide a recognition of the common law principles. [11]
-A sentencing court must treat restitution as mitigatory. This is because the making of restitution impacts directly on the extent of any loss suffered, and must be brought to account by reason of section 10(1)(e).[12]
-The circumstances under which restitution is made may demonstrate contrition and remorse. These are matters of mitigation. This is because contrition and remorse suggest that there are good prospects for rehabilitation.[13]
[10] Matulich v Police [2007] SASC 440 reviewing The Queen v Robertson (1984) 115 LSJS 51; Radjevic v Police (1997) 67 SASR 478; Kovacevic v Mills (2000) 76 SASR 404; SA Police v John (1995) 181 LSJS 20; O’Keefe (1992) 60 A Crim R 201; R v Allen [2005] QCA 73.
[11] See The Queen v Robertson (1984) 115 LSJS 51 at 53.
[12] See Kovacevic v Mills (2000) 76 SASR 404.
[13] See The Queen v Robertson (1984) 115 LSJS 51.
We have reached the conclusion that the sentencing Judge failed to give sufficient weight to the defendant’s offer of reparation as a matter of mitigation.
Reconsideration of Sentence
At the time of sentencing, the defendant was 31 years of age. A number of references were tendered to the Court, emphasising that the defendant was a man of good reputation and character and outlining the high regard in which he is held.
A reference was provided by the manager of the Marina Hotel based in Port Lincoln, Martin Hains, who had previously supervised the defendant in the security section of another hotel. Mr Hains observed that the defendant continually found ways of handling potentially dangerous situations and has developed into a highly respected crowd controller. Mr Hains emphasised that despite the alleged assault, he would not hesitate to employ the defendant as a crowd controller at the Marina Hotel.
Similarly, Marcus Stehr, the managing director of Clean Seas Tuna Limited, indicated that he would not hesitate to employ the defendant if the opportunity presented itself. Mr Stehr noted that the defendant would be “a valued employee for any organisation, as he strives for excellence in everything that he does”.
The Managing Director of the South Australian Special Operations Group, Tony Edmonds, also provided a character reference. Mr Edmonds described the defendant as a hardworking, responsible and trustworthy man and emphasised that the incident of the assault was “extremely out of character”.
The South Australian Retail Operations Manager of Radio Rentals, Russell Davies, also described the incident as extremely out of character. Mr Davies said that over the course of several years in which he had known the defendant he had never known him to be confrontational or aggressive.
The Operational Supervisor of the Port Augusta Prison, Shaun Barry, described the defendant as a mature man who continues to present himself as a respected and professional person. Mr Barry noted that the defendant has been described by others as a person of integrity and vision.
The Unit Manager of Port Lincoln Prison, Eric Harrison, similarly praised the defendant’s ethics, integrity and values, describing him as professional, honest, reliable and as having good communication skills.
The defendant is a first offender with a previously unblemished record. It is to be observed that the defendant has worked as a security guard for many years without any incidences of violence. The defendant has demonstrated contrition and remorse, pleading guilty at the earliest opportunity to the amended charge.[14] As earlier observed, it was accepted by the Judge that the circumstance of the assault was that the defendant exercised excessive self-defence by the application of a pre-emptive blow, in circumstances where he considered the victim intended to hit him.
[14] As earlier observed, the defendant was originally charged with unlawfully causing harm with intent to cause harm contrary to section 24(1) of the Criminal Law Consolidation Act.
By affidavit dated 9 December 2009, the defendant deposed to his personal circumstances and the impact the recording of a conviction would have, and has had, on his employment. The defendant indicated that when he was charged for the subject offending, he was initially suspended with pay by the Department for Correctional Services for approximately two weeks. Prior to sentencing, the defendant spoke to the Department’s Investigator regarding whether his employment would continue if he was convicted of the offence as charged. The defendant also spoke to a Correctional Services Union representative about the prospects of his employment being terminated in the event of a conviction being recorded against him. The defendant deposed that at that time, he was given a clear impression that his employment would be terminated if he was convicted of the assault. It was these discussions and that impression that caused the defendant to instruct his counsel to focus the sentencing submissions on the impact a conviction would have on his employment.
Subsequent to the sentence being imposed, the defendant informed his employer that he had been convicted and had received a suspended sentence from the Court. The defendant then received a letter from the Chief Executive of the Department for Correctional Services advising that he was suspended with pay for two weeks and then would be suspended without pay pending termination proceedings.
As a prison warder, the defendant is subject to the Public Sector Management Act 1995 (SA). Section 57 provides for the general rules of conduct and for liability to disciplinary action. Those rules include the following:
An employee is liable to disciplinary action if the employee—
…
(d) is guilty of disgraceful or improper conduct in an official capacity, or is guilty in a private capacity of disgraceful or improper conduct that reflects seriously and adversely on the Public Service; or
…
Section 60 of the Public Sector Management Act provides for procedures on the imposition of a conviction of an offence punishable by imprisonment:
Disciplinary action on conviction of an offence punishable by imprisonment
(1)If an employee is convicted of an offence punishable by imprisonment, the Chief Executive of the administrative unit in which the employee is employed may recommend to the Governor—
(a)     that the employee be transferred to some other position in the Public Service with a lower remuneration level; or
(b)     that the employee's employment in the Public Service be terminated.
(2)The Chief Executive must, before recommending any disciplinary action under subsection (1) because an employee has been convicted of a summary offence, give the employee at least 14 days notice in writing of the disciplinary action that the Chief Executive proposes to recommend.
(3)Disciplinary action must not be taken under this section on the basis of a conviction that is under appeal, or against which a right of appeal still lies.
(4)The Governor may, on the recommendation of the Chief Executive under this section—
(a)     transfer an employee to some other position in the Public Service with a lower remuneration level; or
(b)     terminate an employee's employment in the Public Service.
[Emphasis added]
The above provisions highlight that a conviction recorded against a Public Sector employee may automatically give rise to the lawful termination of employment.
On the hearing of the appeal, a further letter from the Chief Executive of the Department of Correctional Services was tendered, in which the following view was expressed:
If the conviction against you remains in place following the conduct of your appeal against the sentence imposed in the District Court on 29 September 2009, I intend to recommend to the Governor that your employment in the public service be terminated, pursuant to section 60 of the Act. I will afford you another opportunity to submit to me as to why I should not act as intended. If your conviction is overturned and you are dealt with on the basis of no conviction, a disciplinary inquiry into the allegations set out in the Notice of Inquiry will be conducted pursuant to section 58 of the Act.
It is in these circumstances that it is necessary for this Court to consider whether good reason exists for proceeding without recording a conviction.
Discretion to proceed without conviction
As earlier observed, counsel for the prosecution informed the sentencing Judge that the prosecution accepted that if the Court thought it appropriate, it would be in the Court’s discretion to proceed without recording a conviction. This position was maintained at the hearing of the appeal. In the event of this Court proceeding to resentence, it was accepted that the Court, if it thought appropriate, could proceed without recording a conviction.
The Court has power to proceed without conviction pursuant to two provisions of the Sentencing Act, sections 16 and 39.
Section 16 provides:
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.
The exercise of the section 16 discretion is enlivened if the court is satisfied of a number of preconditions. First, the court must propose to impose a fine, a sentence of community service, or both. Secondly, it must be satisfied that the defendant is unlikely to commit such an offence again. Thirdly, the court must be satisfied that there is good reason not to record a conviction, having regard to one or more of the factors set out in section 16(b). These factors are the character, antecedents, age or physical or mental condition of the defendant, the fact that the offence was trifling or any other extenuating circumstances.
If those preconditions are satisfied, the discretion is enlivened; however, that discretion is not necessarily required to be exercised. The court must consider whether, notwithstanding the satisfaction of those preconditions, it is, in all the circumstances, appropriate to exercise the discretion.
The alternative provision under which the court may proceed without recording a conviction is section 39 which provides:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)   to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)     no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The wording of sections 16 and 39 contain important differences. For section 16 to be enlivened it is necessary for the Court to be intending to impose a fine or to make a community service order. This precondition is not required for the exercise of the discretion pursuant to section 39. In addition, there is no requirement for the court to have regard to particular factors in arriving at the conclusion that good reason exists to discharge the defendant without recording a conviction. Although similar factors may be relevant in the exercise of the court’s discretion pursuant to both sections 16 and 39, it is important to recognise that the sections have different work to do and may operate in different circumstances.[15]
[15] Hodgins v Police [2008] SASC 176 at [15].
In deciding whether to impose a conviction, this Court should weigh the beneficial nature of the order to proceed without a conviction to the offender, with the public interest inherent in convictions being recorded. The tension between these factors or interests was highlighted by the Queensland Court of Criminal Appeal in Briese: [16]
…the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department…For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and courts need to be aware of this potential effect...
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation…
...
The express mention…of the nature of the offence as a factor to which the court must have regard in the exercise of the discretion whether or not to record a conviction suggests that there are certain types of offences which will call for the recoding of a conviction…A court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so called ‘victimless’ crime.
Observations to this effect have since been enunciated by a number of courts in different jurisdictions, including this Court.[17]
[16] R v Briese (1997) 92 A Crim R 75 at 79-81.
[17] Attorney-General v Smith [2002] TASSC 10 at [18] -[26]; Zefi v Police [2003] SASC 218 at [15]-[16]; Szep v Police [2003] SASC 144.
In the circumstances of the present proceeding, the potential impact of the conviction on the defendant’s future, particularly in light of the deleterious impact on his employment, is an important and relevant factor to be considered.
This Court has consistently observed that the risk to future employment is a relevant factor to be considered when assessing whether to proceed without a conviction.[18] It is to be remembered that in the circumstances of the present case, the defendant’s immediate employment is jeopardised by the recording of a conviction, in addition to his future employment prospects.
[18] See eg, O’Hanlon v SA Police (1994) 62 SASR 553 at 557; MacGregor v Police (1995) 66 SASR 269 at 272; Buttigieg v Police (1999) 74 SASR 229 at [24].
It is also relevant to note that this Court has exercised its discretion to proceed without a conviction even in cases of quite serious offending. In McAvaney v Quigley,[19] the Court proceeded not to record a conviction following the plea by a young man to a charge of assault occasioning actual bodily harm. Similarly, in Hodgins v Police[20] a conviction was not recorded in circumstances of assault.
[19] McAvaney v Quigley (1992) 58 A Crim R 457.
[20] Hodgins v Police [2008] SASC 176.
As earlier observed, the defendant has an unblemished record. The defendant has committed his first offence at the age of 31 years and it is unlikely that he will reoffend. The assault was committed in circumstances where the defendant perceived that the victim intended to strike him and the defendant’s pre-emptive strike was accepted to be in excessive self-defence. The evidence before the Court demonstrates that the recording of a conviction is likely to have a long-term disproportionate consequence on the defendant having regard to his particular field of employment. As noted, the defendant is unlikely to offend again and is likely to lead a law-abiding and socially productive life. His lack of criminal history at the age of 31 years provides support for the contention that the offence was an aberration and out of character.
It is to be observed that the defendant’s conduct was grave. The assault caused significant injury to the victim. The sentencing Judge was correct to assess the defendant’s conduct as serious. In the ordinary course, such conduct would warrant the imposition of a conviction, suspended as a consequence of the mitigating factors outlined. However, having regard to the unusual circumstances of the present case, including the defendant’s lack of antecedents and the circumstances of use of excessive self-defence, we consider that there are good reasons to proceed without recording a conviction. Particularly having regard to the direct impact on the defendant’s employment, we consider it appropriate, in all the circumstances, to exercise our discretion pursuant to section 39 of the Sentencing Act. The defendant’s history, employment and the unusual circumstances of the assault warrant a merciful approach. It is in circumstances such as these that the imposition of a conviction would be counterproductive. The public interest would not be served by fettering the defendant’s future endeavours through the imposition of a conviction.

In the circumstances of the present proceeding, we consider it appropriate to exercise our powers under section 39 of the Sentencing Act rather than section 16. Section 39 allows for the imposition of a good behaviour bond. That section further allows for the defendant to be sentenced for the present offending in the event of a breach of that bond. Having regard to the seriousness of the offence, it is appropriate that the defendant remain liable for his offending in the event of breaching the bond imposed. Section 39 is the more appropriate source of power to be utilised. We consider it appropriate to impose a three year good behaviour bond in the amount of $100.00.
Conclusion
We allow the appeal. We set aside the conviction and sentence imposed by the sentencing Judge. We exercise the Court’s power under section 39 of the Sentencing Act and release the defendant without conviction on entry into a three year good behaviour bond.