R v Yousef

Case [2005] SASC 203

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 203

Court of Criminal Appeal:       Sulan, White and Layton JJ

SULAN and LAYTON JJ

Introduction

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R v Yousef [2005] SASC 203
Case
[2005] SASC 203
Decision Date

CaseChat Overview and Summary

The case of R v Yousef involved an application by the Director of Public Prosecutions (DPP) for leave to appeal against the sentence given to the respondent, who had been charged with false imprisonment and indecent behaviour. The respondent pleaded guilty to false imprisonment but was acquitted of the indecent behaviour charge. The trial judge discharged the respondent without recording a conviction and without penalty, requiring the respondent to enter into a bond to be of good behaviour in the sum of $500 for a period of two years. The DPP sought leave to appeal against the sentence, arguing that it was manifestly inadequate and that the trial judge had made errors in characterising mitigating circumstances and in not recording a conviction.

The legal issues before the court included whether the trial judge’s approach to sentencing was flawed, whether the judge had erroneously characterised the respondent's explanation for his behaviour as a mitigating circumstance, and whether the trial judge had erred in not recording a conviction. The court considered the principles governing the exercise of the discretion to grant leave to the Crown to appeal against sentence, particularly in relation to cases where the sentence is considered manifestly inadequate.

The court held, by a majority, that leave to appeal should be granted and that the appeal should be allowed to the extent that a conviction be recorded. The majority found that the sentence was manifestly inadequate and constituted an error of principle warranting interference by the Court. The majority also found that the trial judge had misapplied the principles regarding the circumstances in which a conviction should not be recorded. The court concluded that it would be unduly harsh to impose a suspended sentence of imprisonment but agreed that a conviction should be recorded. The court did not interfere with the imposition of the bond under section 39 of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 CJWHITE 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.

Ratio Decidendi

Legal Principle Established

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