R v Yousef
[2005] SASC 203
•7 June 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YOUSEF
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Layton)
7 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application by DPP for leave to appeal against sentence – the respondent was charged with false imprisonment and indecent behaviour – respondent pleaded guilty to false imprisonment – trial by judge alone – respondent acquitted of charge of indecent behaviour – respondent discharged without recording a conviction and without penalty upon the respondent entering into a bond to be of good behaviour in the sum of $500 for a period of two years - whether the trial judge’s approach to sentencing gave rise to a manifestly inadequate sentence – whether the trial judge erroneously characterised the proffered explanation by the respondent for his behaviour as a mitigating circumstance – whether the trial judge erred in not recording a conviction - consideration of the principles which apply to the exercise of the discretion by the court to grant leave to the Crown to appeal against sentence – held by majority leave to appeal granted – held by majority appeal allowed.
Crimes Act 1914 (Cth) s 19B; Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Law Consolidation Act 1935 (SA) s 352(1)(iii); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 17, s 18, s 38, s 39; Summary Offences Act 1935 (SA) s 23(1)(b); Offenders Probation Act 1913 (SA) s 4, referred to.
Elliott v The Queen (2001) 121 A Crim R 254; Everett v The Queen (1994) 181 CLR 295; Dinsdale v The Queen (2000) 202 CLR 321; Hemming v Neave (1989) 51 SASR 27; R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487; R v Califano (2002) 134 A Crim R 281; R v Howlett (1997) 97 A Crim R 153; R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; R v Lobban (2001) 80 SASR 550; R v Malvaso (1989) 168 CLR 227; R v Nemer (2003) 87 SASR 168; R v Olbrich (1999) 199 CLR 270; R v Payne (2004) 89 SASR 49; R v Slater (1984) 36 SASR 524; R v Tait & Bartley (1979) 24 ALR 473; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; R v Wacyk (1996) 66 SASR 530; R v Wilton (1981) 28 SASR 362; Sims v Police (2000) MVR 524; The Queen v Avgoustinos (1975) 13 SASR 48; The Queen v Osenkowski (1982) 30 SASR 212; Zefi v Police [2003] SASC 218, considered.
R v YOUSEF
[2005] SASC 203Court of Criminal Appeal: Sulan, White and Layton JJ
SULAN and LAYTON JJ
Introduction
This is an application, pursuant to s 352(1)(iii) of the Criminal Law Consolidation Act 1935 (SA), by the Acting Director of Public Prosecutions (“the DPP”) for leave to appeal against a decision imposed by a Judge of the District Court in respect of an offence committed on 6 January 2003.
The respondent was charged with two offences, each of which was alleged to have occurred on 6 January 2003. The first count alleged the common law offence of false imprisonment. The second count alleged an offence of indecent behaviour contrary to s 23(1)(b) of the Summary Offences Act 1935.
The respondent pleaded guilty to the first count but not guilty to the second count. Following a trial, a District Court Judge, sitting without a jury, held that he was not satisfied that the offence of indecent behaviour had been proved beyond reasonable doubt.
At the same time, the Judge conducted a hearing to resolve a dispute as to the facts upon which he should sentence the respondent. Following his decision on the disputed facts, and after hearing sentencing submissions, the Judge, pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (“the Act”), discharged the respondent without recording a conviction and without imposing any penalty, upon the condition that he enter into a bond in the sum of $500 in his own recognizance to be of good behaviour for a period of two years.
The DPP seeks leave to appeal against that sentence. Two grounds are relied upon. First, it is submitted that the sentence imposed is manifestly inadequate. Secondly, it is submitted that the Judge erred in the exercise of his discretion pursuant to s 39 of the Act in determining that the circumstances of the offending gave rise to a good reason to discharge the accused without recording a conviction.
The circumstances of the offending
In January 2003 the respondent, a thirty eight year old man, worked as an owner/driver of a taxi. He had worked in the industry for approximately five years. He came to Australia in 1992 from Palestine.
On 6 January 2003, whilst driving his taxi on Hampstead Road at Clearview, he was hailed by the eighteen year old female victim, to whom we shall refer as Ms A. According to Ms A, before she got into the taxi, she told the respondent that she did not have any money, but wished to be taken to the Gilles Plains Shopping Centre where she would go to an ATM, withdraw money and pay the fare. The respondent gave evidence at the trial that Ms A told him that she had only $3.40 or $3.60, and that she was running late to pick up her son who had been left with a friend at Gilles Plains.
According to the respondent, out of sympathy, he agreed to take her to Gilles Plains where he understood her son to be. During the journey, Ms A asked to be taken to the Gilles Plains Shopping Centre. This angered the respondent, because he believed that he had been misled by Ms A into agreeing to give her a free ride.
It was common ground that instead of taking Ms A directly to the Gilles Plains Shopping Centre, he initially drove on a route which was appropriate for that destination but then diverted to a longer route. He drove her around a number of back streets in Gilles Plains and stopped for a time in Grant Avenue, before taking her to the shopping centre. This diversion took 10 minutes and it precluded her from alighting from the taxi. This is the basis of the false imprisonment.
The evidence of Ms A and the respondent differed as to the respondent’s conduct during the journey. Ms A said that at various stages during the journey, the respondent had made sexually suggestive comments to her. She said that when the respondent parked his taxi in the car park at the Gilles Plains Shopping Centre, he had exposed his penis, which was erect, and had asked her to touch it. She refused. She managed to leave by telling the respondent that she would telephone him later. The respondent wrote down his telephone number. She did not pay him money and went to the ATM in the shopping centre and withdrew money. The respondent left the car park whilst she was at the ATM. She was frightened by the respondent’s conduct.
It was the respondent’s alleged behaviour in exposing his erect penis that was said to have constituted the indecent behaviour, the subject of count two.
The respondent denied that he had engaged in such indecent behaviour, or in any conduct of a sexually suggestive kind. His evidence was that he had become annoyed when, having been induced to give the victim a ride out of sympathy, she had, part-way through the journey, asked to be taken to a shopping centre. He thought he had been tricked and decided to teach Ms A a lesson. Hence, he had driven around and precluded her from alighting from the cab. He said an argument had developed and he stopped in Grant Avenue and then eventually drove her to the Gilles Plains Shopping Centre.
Findings by the judge
The Judge decided that whilst he did not reject the evidence of Ms A and accepted that what she had said did probably occur, he was not satisfied beyond reasonable doubt that the accused had committed the indecent act. He concluded that Ms A was “a straightforward and honest witness” and that the respondent was “not so impressive”. He was “occasionally antagonistic and angry. He was disparaging and condescending of Ms A”. The Judge reminded himself that, before the respondent could be convicted, the Court must be satisfied beyond reasonable doubt of his guilt. He was not so satisfied and the Judge therefore found the respondent not guilty of indecent exposure.
In relation to his findings on the disputed fact hearing, the Judge reminded himself that the respondent bears the burden of establishing circumstances of mitigation on the balance of probabilities, and that the prosecution bears the burden of establishing the circumstance of aggravation beyond reasonable doubt (see R v Olbrich[1]; R v Lobban[2]). The Judge made his findings as follows:
80.The Crown therefore bears the onus of establishing that the purpose of the imprisonment was to curry sexual favours. It is an aggravating circumstance and therefore must be proven beyond reasonable doubt.
81.The accused contends that the purpose of the imprisonment was to merely frighten Ms A and deter her from in the future deceiving taxi drivers like him into giving free rides. This amounts to a mitigating circumstance and must be proven on the balance of probabilities.
82.In accordance with my findings the Crown have not proven the aggravating circumstance and nor has the accused proved the matter of mitigation. Accordingly, I will sentence the accused for the offence of False Imprisonment on the basis of the bare particulars on the Information. I will give counsel an opportunity to address me on this matter.
[1] (1999) 199 CLR 270
[2] (2001) 80 SASR 550
The particulars of the offence in the Information were limited to the following
Basil Yousef on the 6th January 2003 at Gilles Plains, unlawfully imprisoned Ms A and detained her for about 10 minutes against her will.
During the sentencing submissions by the prosecution, the following submission was made:
Mr Lesses: The fourth proposition is that the purpose of the detention, for the purpose of this hearing, remains undetermined.
The reason why I say that is because, at the end of the day, your Honour has not found the aggravating feature proven beyond reasonable doubt and nor has your Honour found the matter of mitigation proven, and, as I understand the recent authorities, … you don’t simply fall back to a particular position simply because you haven’t been satisfied of certain matters in aggravation or mitigation.
His Honour: I’ve probably pretty much said that in para.82, haven’t I?
Mr Lesses:That’s right. Whilst, at the end of the day, that may seem unusual, I think, legally, that’s the only available position.
Further, the prosecution indicated:
I’m not submitting that this is a serious incident of false imprisonment; on the contrary, it’s at the lower end of the scale, but, when put in the context of a taxi driver carrying out his daily employment duties, there is an element of seriousness involved and for that reason I suggest the bond with a recording of a conviction. In my submission, that strikes a balance between the relative seriousness of the offence and also Mr Yousef’s otherwise good history.
The particulars in the Information were minimalist for the purpose of any sentence. There was not even a reference to imprisonment having occurred in a taxi. The Judge in spite of indicating that he would sentence on those particulars, did not so confine himself and included some further limited factors.
I sentence you on the following basis. You were taking Ms A to the Gilles Plains Shopping Centre from Clearview and, in the course of doing so, you deviated from the route, which was southbound on Blacks Road, by turning into Dalley Road or Swanson Avenue, and for some 15 minutes or so you drove around, including stopping in Grant Avenue for a short time. The experience considerably frightened Ms A.
Consistent with my findings, I cannot sentence you on the basis that the purpose was as you say, because I am not satisfied on the balance of probabilities that it was as you claimed. Nor can I sentence you on the basis that the detention was to curry sexual favours from Ms A, which was the Crown’s case and which I found was not proven beyond reasonable doubt. So I will sentence you on the basis merely that the deviation, and therefore the imprisonment, occurred, that it was illegal, and that it frightened your young passenger. It is somewhat artificial, but that is how it must be.
The sentence imposed
The Judge received a victim impact statement and heard counsels’ submissions. In her victim impact statement, Ms A spoke of her distrust of taxi drivers, ethnic men generally, and of an underlying anxiety which was present even when she was at home, but increased when she went out socially or to shopping centres.
The Judge declined to record a conviction, and ordered that the respondent be released upon entering into a bond, pursuant to s 39 of the Act, which provides:
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. [emphasis added]
In sentencing the respondent, the Judge said:
You are to be given credit for your plea of guilty.
Doing what you did was arbitrary and frightening. It is a form of violence. The victim was a young unaccompanied 19-year-old woman. Once in your vehicle, she was, in a sense, at your mercy. There is an element of trust involved in your work as a taxi driver. Once in your vehicle, passengers such as [Ms A] are effectively within your power. In this case, you abused that and considerably frightened [Ms A].
However, having said all that, I accept that this is not a serious example of false imprisonment. It was brief and you relented almost as soon as you began this misconduct. Hitherto you have been a law-abiding, productive member of this community. I am prepared to treat this as a never to be repeated, impulsive aberration.
Sentence
Your counsel, Ms O’Connor, submitted that a bond would be the appropriate penalty. The Crown did not dismiss that. However, the Crown sought a conviction, whilst your counsel, Ms O’Connor, asked me not to convict you and thereby stain your record forever.
With some reluctance, bearing in mind the frightening nature of what you did, I will not impose a conviction.
Submissions on appeal
The DPP did not take issue with the Judge’s finding that he was not satisfied beyond reasonable doubt that the respondent was motivated by some sexual attraction to Ms A when he drove her through the back streets of Gilles Plains.
The DPP submits that the sentence was manifestly inadequate, and that a conviction should have been recorded. Counsel contends that false imprisonment is a serious offence, especially if committed by a taxi driver in the course of his occupation and in respect of a stranger. The victim was a young woman, alone and vulnerable, and at the mercy of the respondent. The respondent, on his own version, had no justification for detaining the victim.
The DPP submits that the Judge proceeded on an erroneous basis for the following reasons:
First, that the Judge was wrong in failing to sentence the respondent on his version of events.
Second, linked to the first ground, the DPP submitted that the Judge erred in not making sufficient findings of fact for the purpose of sentencing.
Third, the DPP submitted that the Judge erroneously characterised the proffered explanation by the respondent for his behaviour as a “mitigating” circumstance, when his explanation for the false imprisonment was to teach her a lesson and frighten her.
Fourth, it was submitted by the DPP that there was no finding of “good reason” such as to render it appropriate not to record a conviction pursuant to Section 39 of the Act.
In response, the respondent in essence argued that leave to the Crown to appeal should be limited to rare cases and that these circumstances were not made out. Further, it was apposite for the Judge to have not recorded a conviction because of the limited nature and purpose of the false imprisonment, the respondent’s previous good character and the likely effect that a conviction would have on his future employment prospects.
Sentencing approach
The DPP submitted that the approach of the Judge to sentencing gave rise to a manifestly inadequate sentence.
In our view it was not appropriate after rejecting both versions, to then sentence the respondent in a vacuum. The Judge had sworn evidence from Ms A and from the respondent. Having determined that he was not satisfied beyond reasonable doubt of Ms A’s version, the Judge was left with the version of the respondent. He was in error in sentencing the respondent simply on the basis that the imprisonment occurred and Ms A was frightened by it.
As the Judge acknowledged, his approach resulted in an artificial result. Although he had concluded that he was not satisfied beyond reasonable doubt that the respondent’s purpose in holding Ms A in the taxi against her will was motivated by a sexual desire of the respondent, it does not follow that the approach he then adopted was correct. The respondent’s explanation of what occurred was the factual basis upon which the Judge should then have sentenced.
Further, we do not agree with the conclusion of the Judge that the circumstances put forward by the respondent mitigate his involvement in the offence. It seems to us that the explanation proffered by the respondent did not mitigate his involvement. It was an explanation for his conduct. It is not an extenuating circumstance for a taxi driver to say that he falsely imprisoned his passenger to teach her a lesson because he thought she had misled him.
The factual basis on which the Judge should have sentenced on the respondent’s version is as follows. The respondent was in his taxi waiting for a fare when he was approached by Ms A who advised him that she wanted to go to Gilles Plains, but that she only had about $3.40 which was not enough money to pay the fare. The respondent understood that she wanted to travel to Gilles Plains to pick up her son but no particular address was given. He agreed to take her and Ms A got into the front seat. During the journey, Ms A said that she wanted to go to the Gilles Plains Shopping Centre. The respondent was annoyed, because he believed he had been misled by Ms A about her having too little money, so he then drove away from the shopping centre. He agreed that he drove into a number of back streets. He gave as his reason that on occasions taxi drivers do not get paid, and he was angry about the situation and wanted to scare Ms A so that she would not mislead taxi drivers in the future.
The respondent knew that Ms A was scared and upset. He said in his evidence:
Because, like, we had an argument and I stopped while she was telling me that she wasn’t paying me, she doesn’t have the money now and all of that, so I stopped for a few seconds – I can’t remember exactly how long – then after that I took off again and, as I said, I don’t recall exactly what happened at the time, besides I was pissed off and I was just cross for what she did
…
Q Did you know she was upset.
A Yes, she was scared. She was upset.
Q How could you tell.
A From her face, she almost, you know, about to tear, exactly.
The time that Ms A was held against her will was some 10 minutes.
Eventually, the respondent drove Ms A to the shopping centre, where she left the taxi. Prior to her leaving the taxi, the respondent provided her with his telephone number so that she could telephone him to arrange to pay the fare.
The above facts demonstrate deliberate actions by the respondent, and that he intended to scare and upset his young female passenger. However, the Judge found “that this is not a serious example of false imprisonment”.
It seems to us that the Judge was somewhat misled by the prosecutor’s submissions which described the offending as being at “the lower end of the scale”. It is not clear to us what that submission was intended to convey, particularly as counsel then suggested that, in the circumstances, “the offending was serious”.
Whilst there can of course be far worse examples of false imprisonment, the offence itself is a serious one and involves deprivation of freedom. A taxi driver unlawfully imprisoning a person in a taxi is serious offending, and is further compounded by the respondent’s admitted aggression. Ms A did not know where she would be taken, what the driver would do and she was not in control of the situation. In addition, the respondent acknowledged that he was aware of a procedure which was appropriate if a person did not pay the appropriate fare. That included taking the passenger to the nearest police station.
There are some further features of the Judge’s sentencing approach which suggest that he may not have given appropriate consideration to some important features. In particular there was no reference in his reasons as to the effect of this offending on Ms A; there was also no reference to the aspect of general deterrence. Whilst it cannot be assumed that the Judge did not have regard to these matters merely because they were not mentioned, in the circumstances of this offence and offending they were significant features which would impact on the gravity of the sentence to be imposed.
A final concern is that the Judge did not indicate upon what grounds he concluded there was good reason for discharging the respondent without recording a conviction and without imposing any penalty pursuant to s 39 of the Act.
When does good reason not to impose a conviction exist?
What then are the factors the court should address in determining whether “good reason” exists not to record a conviction? Prior to the enactment of the Criminal Law (Sentencing) Act 1988, the power to require a defendant to enter into a bond was contained in s 4 of the Offenders Probation Act 1913. The power to direct that no conviction be recorded was restricted to summary offences. The section provided that the court have regard to the character, antecedents, age, health or mental condition of the defendant, or to the trivial nature of the offence, or the extenuating circumstances under which the offence was committed. In the case of indictable offences, the court was required to record a conviction but could impose a bond, having regard to matters to which we have referred.
The phrase “good reason” appears in both ss 16 and 39 of the Act, and their content would suggest that “good reason” would have some features in common which would justify an amelioration of the sentence.
As Bleby J observed in Sims v Police[3]:
… the assumption behind s 16 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 16 is by way of exception to the normal rule. In order to exercise the power conferred by s 16, the court would have to identify what it was that provide good reason for not recording the conviction …[4]
[3] (2000) 30 MVR 524
[4] Ibid at [7]
Equivalent legislation in other jurisdictions
The equivalent Commonwealth provision provides that the dismissal of the charge is warranted, having regard to the character, antecedents, cultural background, age and physical and mental condition of the offender, the triviality of the offence, the existence of extenuating circumstances and the expediency of inflicting any punishment, or anything more than a nominal punishment.[5]
[5] See s 19B of the Crimes Act 1914 (Cth)
The equivalent New South Wales provision requires the court to have regard to character, antecedents, age, health or mental condition of the defendant and the trivial nature of the offence, and/or any extenuating circumstances under which the offence was committed and any other matter which the court considers appropriate.[6]
[6] See s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
The discretion of the court to exercise its powers under s 39 of the Act is a wide discretion. In considering whether good reason exists, the factors to which s 4 of the Offenders Probation Act 1913 referred, and the factors to which the equivalent Federal and New South Wales legislation refer are, in our view, factors to which a court should have regard. Other factors, such as the religious background of an offender, may also be relevant.
The offending in this case
The respondent was a thirty eight year old man. There is no doubt that life has been difficult for him. He left his place of birth in 1967 and was forced to leave his adopted country of Kuwait after the first Gulf War in 1991. He obtained a Bachelor of Science in Electrical Engineering in 1990 at the University of Manila in the Philippines, and when he came to Australia 1992 as a skilled migrant he found that his qualifications were not recognised. One can only feel sympathy for him. He has had to overcome many hurdles in his life. However, the respondent had lived in Australia for over ten years at the time that this offence was committed. He well understood the law and customs existing in Australian society. The personal factors do not justify the course adopted by the Judge. These circumstances do not amount to good reason not to record a conviction.
In this case, the offence was deliberate. It continued over a period of time. The respondent was in a position of power by reason of the age differential as well as the fact that his passenger was a woman. The experience was a terrifying one.
There is also a significant public interest. Taxi drivers have a responsibility to the public to safely convey passengers who engage them. They provide an essential service to many members of the public. Many members of the public rely upon taxi drivers. In particular, there are many vulnerable individuals who are unable to travel on public transport, due to age or infirmity, who require the assistance of taxi drivers. Young women also rely on taxis as a safe means of transport. The public is reliant upon the honesty and integrity of those who transport them. Often members of the public who engage taxi drivers are not familiar with the areas into which they travel. They are entitled to expect to be conveyed to their destination by the most efficient and most economical route.
In this case the offending was serious. It could not be said to be trivial. It could not be said that there were extenuating circumstances which justified the approach taken by the sentencing Judge. There was nothing in the respondent’s personal circumstances which justified the approach taken.
The concession by the prosecutor that good reason existed to impose a bond under s 39 of the Act was an error. The offending was such that a suspended sentence of imprisonment was warranted. In our view, the trial Judge was led into error by the submissions made on behalf of the DPP. The decision of the Judge not to record a conviction was also an error.
Interference with a sentence on a Crown appeal
The principles which apply to the exercise of the discretion by the court to grant leave to the Crown to appeal are well established. The court should grant leave only in the rare and exceptional case when a Crown appeal is necessary to establish some matter of principle, including the kind of manifest inadequacy which constitutes an error in point of principle.[7]
[7] See Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ; R v Wilton (1981) 28 SASR 362 at 363 per King CJ; Elliott v The Queen (2001) 121 A Crim R 254 at 257 per Doyle CJ and at 259 per Gray J
In The Queen v Osenkowski[8], King CJ said:
… The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[9]
[8] (1982) 30 SASR 212
[9] Ibid at 213
In R v Wilton[10], King CJ said:
A prosecution appeal, like a convicted person’s appeal, against sentence, is a challenge to the exercise by the sentencing judge of the discretion vested in him to determine the appropriate sentence within the limits prescribed by law. The principles upon which an appellate court will interfere with the exercise of a judicial discretion are well settled. There will be no such interference unless the exercise of the discretion has miscarried by reason of some relevant mistake of law or fact or by reason of the judge taking into account some extraneous factor or failing to give any or adequate consideration to a material factor. If the sentence is manifestly disproportionate to the crime considered in the light of all the relevant circumstances, the appellate court will infer that the exercise of the sentencing discretion has miscarried in some way although the precise error cannot be identified. The appellate court does not, however, interfere because it considers that the sentence is more severe or less severe than the judges of the appellate court would have imposed.[11]
[10] (1981) 28 SASR 362
[11] Ibid at 363 [6]
In Everett v The Queen[12], Brennan, Deane, Dawson, Gaudron JJ said:
… Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v. The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.[13] [footnotes omitted]
[12] (1994) 181 CLR 295
[13] Ibid at 299-300
The principle was again reaffirmed in Dinsdale v The Queen.[14] Gleeson CJ and Hayne J reaffirmed that if a decision is unreasonable or plainly unjust, then the appellate court may infer that the discretion of the sentencing Judge has miscarried. See also R v Nemer[15] and R v Payne.[16]
[14] (2000) 202 CLR 321
[15] (2003) 87 SASR 168 per Doyle CJ
[16] (2004) 89 SASR 49
Even if the court does decide that the case is an appropriate one for a grant of leave to appeal, it may decline to allow the appeal and simply indicate that the sentence is too low.[17]
[17] See R v Elliott above n.7 at 258 per Doyle CJ
The effect of recording a conviction
The recording of a conviction does have adverse consequences to a defendant. A person with a previous conviction may be excluded from certain types of employment. There are some countries which refuse entry visas to persons who have a prior conviction. The stigma of a prior conviction can cause other difficulties, such as obtaining character references to support rental housing applications. In The Queen v Avgoustinos[18], Bray CJ observed:
… Indeed, I would say for myself that when a court chooses to dismiss a charge without proceeding to conviction there must be some difference in the weight which should be placed on that order and the weight which should be placed on a conviction without a penalty. Parliament has provided these two alternatives; it must have intended that there should be some difference in effect between them. There is no immediate difference. In either case the defendant leaves the court unscathed. The only difference therefore can be in their respective long-term effects on the defendant’s record …[19]
[18] (1975) 13 SASR 48
[19] Ibid at 49
The recording of a conviction has a punitive aspect. A conviction does not merely record a finding that the person committed the crime charged: it condemns him for that crime; it is a communicative act, communicating censure to the convicted person.[20] The recording of a conviction acts as a general deterrent to those who may be inclined to offend in a similar way.
[20] Duff R.A., ‘Desert and Penance’, in Von Hirsch A & Ashworth A, eds, Principled Sentencing: Readings on Theory & Policy (Oregon: Hart Publishing, 2000) 161 at 162
There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.[21]
[21] See Zefi v Police [2003] SASC 218 at [14] – [15]; R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487 at [81]; Hemming v Neave (1989) 51 SASR 27
The discretion not to record a conviction should be exercised sparingly. When people are convicted of serious offences, it is important that a conviction be recorded. There are cases in which the offending might be regarded as trivial, or the participation of a person in the offence is so minor that a court will consider not recording a conviction. There may be circumstances in which the recording of a conviction has consequences upon the offender’s future which far outweighs the public interest in a conviction being recorded. In the case of indictable offences, it is a rare case where good reason exists not to record a conviction.
Conclusion
The sentence was manifestly inadequate. It was so inadequate as to constitute an error of principle which justifies interference by this Court. The manifest inadequacy of the sentence was as a result of the Judge approaching the factual circumstances of the offending in the way he did, the wrong characterisation of mitigating circumstances and in failing to identify what good reasons existed to discharge the respondent without recording a conviction. Having regard to the approach taken by the DPP before the sentencing Judge, it is inappropriate to interfere with the imposition of the bond under s 39 of the Act. We consider it would be unduly harsh for this Court to now impose a suspended sentence of imprisonment.[22] On the other hand, the DPP sought the recording of a conviction. We are satisfied that a conviction must be recorded. We would grant the Attorney-General leave to appeal. We would allow the appeal to the extent that a conviction be recorded. In other respects, we would not interfere with the sentence imposed.
[22] Above n. 17 at 258 per Doyle CJ
WHITE J
The circumstances of this application for leave to appeal are set out in the joint judgment of Sulan and Layton JJ.
I agree with Sulan and Layton JJ that as the sentencing Judge was not satisfied beyond reasonable doubt of the victim’s version of events, he should, in the circumstances of this case, have regarded the respondent’s version as the factual basis for his sentence. To that extent there was an error in the reasoning underlying the sentencing decision.
However, it does not follow that leave to appeal should be granted.[23] The principles relating to the grant of leave to the Crown to appeal are reviewed in the judgment of Sulan and Layton JJ. It is not necessary for me to repeat those principles.
[23] R v Elliott [2001] SASC 101; 121 A Crim R 254.
I do not consider that this is one of the “rare and exceptional”[24] cases in which leave should be granted to establish or maintain a matter of principle or a sentencing standard, nor do I consider that the sentence, although very merciful, is manifestly inadequate.
[24] Everett v The Queen (1994) 181 CLR 295 at 299.
The Factual Basis for the Sentence
Following the disputed facts hearing, the Judge found that the Crown had not proved the aggravating circumstance (seeking sexual favours) and that the respondent had not proved a matter regarded by the Judge as mitigatory (the purpose of frightening the victim so as to deter her from deceiving taxi drivers into giving free rides). He then said that he would sentence the respondent for the offence of false imprisonment on the basis of the bare particulars in the Information, ie, that the respondent had unlawfully detained the victim for about 10 minutes against her will.
It is plain, however, that the Judge did not sentence the victim on that basis only. In his remarks on sentencing the Judge said:
I sentence you on the following basis. You were taking [the complainant] to the Gilles Plains Shopping Centre from Clearview and, in the course of doing so, you deviated from the route, which was southbound on Blacks Road, by turning into Dalley Road or Swanson Avenue, and for some 15 minutes or so you drove around, including stopping in Grant Avenue for a short time. The experience considerably frightened [the complainant].
Consistent with my finding, I cannot sentence you on the basis that the purpose was as you say, because I am not satisfied on the balance of probabilities that it was as you claimed. Nor can I sentence you on the basis that the detention was to curry sexual favours from [the complainant], which was the Crown’s case and which I found was not proven beyond reasonable doubt. So I will sentence you on the basis merely that the deviation, and therefore the imprisonment, occurred, that it was illegal, and that it frightened your young passenger. It is somewhat artificial, but that is now it must be.
Later, the Judge said:
Doing what you did was arbitrary and frightening. It is a form of violence. The victim was a young unaccompanied 19-year-old woman. Once in your vehicle, she was, in a sense, at your mercy. There is an element of trust involved in your work as a taxi driver. Once in your vehicle, passengers such as [the complainant] are effectively within your power. In this case, you abused that and considerably frightened [the complainant].
However, having said all that, I accept that this is not a serious example of false imprisonment. It was brief and you relented almost as soon as you began this misconduct. Hitherto you have been a law-abiding, productive member of this community. I am prepared to treat this as a never to be repeated, impulsive aberration.
In effect therefore, what the Judge excluded from the factual basis for the sentence was the purpose of the respondent in detaining the victim. As already noted, in that respect the Judge was, in my opinion, in error.
The Judge did however sentence the respondent on the basis that his conduct had had a frightening effect on the victim. He described the respondent’s conduct as “arbitrary and frightening” and as involving an abuse of the trust placed in him as a taxi driver. It is evident that the Judge took a serious view of the respondent’s conduct.
The principal effect of the error made by the Judge is that the Judge did not take account of the fact that the respondent had chosen, in effect, to take the law into his own hands. However, some account of that factor is perhaps reflected in the Judge’s characterisation of the appellant’s conduct as “arbitrary”. Given the basis on which the Judge did sentence the respondent, I would not regard his error as having affected in a material way his decision as to sentence.
Section 39 and “Good Reason”
The terms of s 39 of the Criminal Law (Sentencing) Act (CLSA) are set out in the majority judgment. By virtue of s 39, a court has a discretion, where it considers that “good reason” exists, to discharge a defendant without conviction and without penalty on condition that the defendant enter into a bond of a stipulated type.
The CLSA contains a number of provisions vesting in a Court a discretion the exercise of which is conditioned upon the Court first being satisfied that there is “good reason” for its exercise. Those other provisions provide some assistance in the determination of what may amount to “good reason” for the purposes of s 39.
Section 16 of the CLSA 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.
For the purposes of the s 16 discretion, the “good reason” must be found in one or other of the matters enumerated in subparagraph (b).
Section 17 of the CLSA provides that a court may fix a penalty below the minimum fixed by a special Act where the Court, having regard to the same matters as specified in s 16(b), is of the opinion that “good reason” exists for reducing the penalty below the minimum.
Section 18 provides that where a court considers that there is “good reason” for departing from the penalties provided by a special Act, it may do so in ways specified in that section.
Section 38 permits a court to suspend a sentence of imprisonment where it considers that there is “good reason” to do so.
As already noted, in the case of ss 16 and 17 the Court is required to “have regard to” specified matters in determining whether good reason exists for the exercise of the relevant discretion. It has been held that where a decision-maker is required to “have regard to” specified matters in reaching a decision, he or she must take account of the specified matters and must give weight to them as “fundamental elements” in the determination.[25]
[25]R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 per Gibbs CJ.
The circumstances which the Court may consider constitute good reason for the purposes of ss 18, 38 and 39 are not circumscribed in the same way. Those sections do not specify any particular matters to which the Court must have regard. That suggests that the Court can have regard to any relevant matter at all in determining whether or not good reason exists to exercise the discretion vested by s 39. In R v Wacyk, in relation to the discretion to suspend a sentence of imprisonment, Perry J (with whom Millhouse J agreed) held that it would be wrong to circumscribe the words in s 38 “if it thinks that good reason exists for doing so” by reference to any formula or gloss.[26]
[26] (1996) 66 SASR 530 at 535.
For these reasons, I am unable to agree entirely with Sulan and Layton JJ that the matters to which regard is to be had in determining whether good reason exists for the exercise for s 39 discretion are those factors to which s 4 of the former Offenders Probation Act 1913 referred, or the factors specified in the comparable provisions of the Commonwealth and New South Wales legislation. That is not to say that the factors specified in that legislation will not be relevant. On the contrary, in my opinion, they will in most cases be highly relevant but they will not be the only factors.
I acknowledge that in most cases the difference may not be material, as s 16 requires regard to be had to “any other extenuating circumstances”. Such circumstances in practice are likely to include any relevant circumstance personal to the offender and any relevant circumstance regarding the commission of the offence. It may therefore be that the difference in this respect between s 16 and s 39 is one of emphasis only. However, there may be circumstances such as the benefit to the State generally, or the benefit to the section of the community of which the defendant forms a part, or circumstances relating to the defendant’s employer, which may not, quite so aptly, come in within s 16.
Good Reason and the Respondent’s Circumstances
In my opinion, it was open to the Judge to be satisfied that there was good reason to discharge the respondent on a bond without recording a conviction, and without imposing a penalty.
The Judge accepted that the respondent’s conduct, while serious, was an aberration which was unlikely to be repeated. He accepted that the appellant’s conduct was not premeditated. It was an impulsive act occurring in the middle of what was a very hot day in January 2003. The Judge accepted, appropriately in my opinion, that the respondent’s offence was one of the less serious cases of false imprisonment.
The respondent was a 38 year old man with no previous court appearances since emigrating to Australia in 1992. The Judge accepted that he had to struggle against adversity in his past, having left Palestine and later Kuwait as a result of wars in those countries. Qualifications which he had obtained in the Philippines in electrical engineering have not been recognised in Australia. He is undertaking further studies with a view to having those qualifications recognised. The respondent supports his family in Australia and in Jordan from his earnings as a taxi driver.
The appellant had pleaded guilty to the offence at an early stage and had expressed contrition about his conduct.
The Judge had the advantage of seeing the respondent during the trial and whilst he gave evidence. He was also able to observe the respondent during the sentencing process, and in particular to observe the salutary effect which participation in the criminal justice system has had on him.[27]
[27] Cf R v Slater (1984) 36 SASR 524 at 536 per Zelling J.
The Judge was told that the result of the court appearance may have some effect on the continuation of the appellant’s licence as a taxi driver. The licensing authority had deferred a decision in that respect until the sentencing was concluded.
These matters in combination could, in my opinion, have been reasonably regarded by the sentencing Judge as constituting good reason for the exercise of the discretion vested by s 39. They demonstrated that the respondent was a mature person of good character, seeking to establish himself and his family in Australia, who had made a serious mistake but one which was unlikely to be repeated.
The error made by the Judge to which I have referred would not, in my opinion, have led to a different conclusion in this respect. The serious nature of the offence, the breach of trust involved and the effect on the complainant also had to be considered. The Judge referred to those considerations. He said that it was “with some reluctance, bearing in mind the frightening nature of what [the respondent] did”, that he was not imposing a conviction.
Other Matters
There are further reasons why, in my opinion, it is inappropriate to grant leave on this application by the Crown.
The first arises from the submission that the error made by the Judge warrants this Court’s interference. The factual basis used by the Judge for the sentence was a basis which counsel for the DPP in the proceedings before the Judge had submitted was properly open to him. The then counsel for the DPP had submitted that it was open to the Judge not to be satisfied beyond reasonable doubt of the victim’s version, that comprising a circumstance of aggravation, but at the same time not to be satisfied of the respondent’s version, that version being accepted by counsel as constituting a circumstance of mitigation. The Judge was told that in that circumstance he would have to sentence “in a bit of a vacuum”, and that he should sentence on the basis of the facts about which there was no dispute. The Judge was not of course bound to accept that submission, and indeed should not have, as it involved an error. But the fact that the course adopted by the Judge followed his acceptance of a Crown submission is relevant to the question of whether leave should be granted to the Crown to appeal. It has been held to be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown’s presentation of the case contributed to the error.[28] In my opinion, that principle should be applied in the present case.
[28]R vTait and Bartley (1979) 24 ALR 473 at 476; R v Wilton (1981) 28 SASR 362 at 363-4 and 368 King CJ; R v Howlett (1997) 97 A Crim R 153. See also R v Malvaso (1989) 168 CLR 227 at 233.
The second consideration relates to the submission that the sentence is, in any event, manifestly inadequate. On the hearing of the application for leave to appeal, as in the sentencing submissions before the Judge, the submission of the DPP has been that the respondent could be sentenced appropriately pursuant to s 39 by the recording of a conviction and the imposition of a bond. Implicit in those submissions is an acceptance that good reason exists for that course. There is a difference between the effect of the entry of a conviction and discharge on a bond on the one hand, and the effect of release without conviction on a bond, on the other. The passage from judgment of Bray CJ in The Queen v Avgoustinos set out in the majority judgment makes that plain.[29] The principal difference is in the long term effect on the defendant’s record. However, those differences are not such, in my opinion, that it can be reasonably be said that whilst release without conviction is manifestly inadequate, release on the same terms after the recording of a conviction is appropriate.
[29](1975) 13 SASR 48 at 49. See also the discussion of Gray J in Zefi v Police [2003] SASC 218 at [13]-[16].
I acknowledge again that neither this Court nor the sentencing Judge is bound to act upon the submission of the Crown in this respect. Nevertheless, the submission of the DPP does, for this further reason, militate against a conclusion that the sentence of the sentencing Judge was manifestly inadequate.
Counsel for the DPP emphasised the intrinsic seriousness of the respondent’s offence. I have already given my reasons for concluding that this was not a matter overlooked by the Judge. But even if I am wrong about that, the failure of a judge to make adequate allowance for the intrinsic seriousness of an offence is not, of itself, an error of principle warranting a grant of leave on a Crown appeal.[30]
[30] R v Califano (2002) 134 A Crim R 281 at 284 per Doyle CJ.
Finally, the circumstances in which the offence of false imprisonment may be committed are so various, and accordingly the range of sentences which may be appropriate so large, that it is not necessary for leave to be granted for the purpose of establishing or maintaining a sentencing standard.[31]
[31] Cf R v Califano (2002) 134 A Crim R 281 at 284-5 per Doyle CJ.
Conclusion
For these reasons, I would refuse the application of the Crown for leave to appeal.
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