SA v Badenhorst
[2018] ACTSC 216
•21 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SA v Badenhorst |
Citation: | [2018] ACTSC 216 |
Hearing Date: | 21 May 2018 |
DecisionDate: | 21 May 2018 |
Before: | Burns J |
Decision: | See [6] and [17] |
Catchwords: | APPEALS – Appeal from Magistrates Court – offence of assault – whether magistrate fell into error in refusing the application for an adjournment – appeal upheld – fresh evidence – re-sentence – matters of mitigation – whether to make a non-conviction order – mandatory considerations – Crimes (Sentencing) Act 2005 (ACT) s 17(3) |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 Crimes (Sentencing) Act 2005 (ACT) ss 13, 17 |
Parties: | SA (Appellant) Frans Badenhorst (Respondent) |
Representation: | Counsel Mr J Purnell SC (Appellant) Mr D Sahu Khan (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 91 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 21 November 2017 Case Title: Badenhorst v [SA] Court File Number: CC 17/3831 |
BURNS J
I have before me an appeal from a decision of a magistrate made on 21 November 2017 with respect to a sentence imposed for a charge against the appellant that on 2 April 2017 she committed the offence of assault contrary to s 26 of the Crimes Act 1900 (ACT). That is a summary offence carrying a maximum penalty of two years' imprisonment.
The appellant initially pleaded not guilty with respect to that charge. The matter was adjourned from time to time in the Magistrates Court until, on 8 November 2017, the appellant, who was represented by a legal practitioner, entered a plea of guilty. The matter was then adjourned until 21 November 2017 for sentencing.
On 21 November 2017, the matter came before the magistrate. Ultimately, after hearing the legal representative of the appellant, the magistrate imposed sentence. It is important to consider what took place during the course of the proceedings on 21 November 2017. It is true, as counsel for the respondent in today's appeal has observed, that at the outset of the proceedings before the magistrate the legal practitioner representing the appellant indicated that they were ready to proceed.
However, in the course of the submissions made on sentence it became clear that the magistrate was not willing to accept a submission made by the appellant's legal practitioner representative without some evidence being put before her. In particular, that related to the likely impact of a conviction for this offence upon the employment of the appellant.
Not surprisingly, the appellant's legal representative sought an adjournment to obtain evidence to put before the magistrate. The magistrate, in a perfunctory manner, refused the application and insisted upon proceeding to sentence that day. In my opinion, the decision of the magistrate to refuse an adjournment was so unreasonable as to bespeak error.
It is quite true, as the counsel for the respondent has today observed, that the notice of appeal contains only one ground of appeal, being that the magistrate failed to take into account or give proper weight to the subjective circumstances of the appellant. However, it is clear that the appeal before me today has been argued on broader grounds. On that basis, I would permit the appellant to amend her notice of appeal to raise a second ground of appeal, being that the magistrate fell into error in refusing the application for an adjournment. I uphold the appeal with respect to that second ground.
I have also received fresh evidence today on behalf of the appellant, being a letter from the principal of the school where she is currently employed. This was the material which the appellant's representative sought to obtain on an adjournment of the proceedings before the magistrate. I should, before I move on, also note that the matter before the magistrate was a very simple matter. It would not have caused any inconvenience to the magistrate or any difficulty with listings within the Magistrates Court if the matter had been adjourned for a short period to enable this material to be put before her.
The magistrate appears to have assumed that the obtaining of this material would have no bearing or relevance on the question of whether the appellant was likely to maintain her employment if a conviction was recorded. There was no evidence before the magistrate which supported any such finding or assumption on her part.
It is also worthwhile noting that the Statement of Facts contained effectively a number of matters of mitigation which were in the form of statements made by the appellant to police at the time about the actions of the complainant towards her before she committed the offence of assault. The Statement of Facts indicated that the complainant had not accepted that he had engaged in conduct as alleged by the appellant.
However, the magistrate took no time or effort to try to determine what facts she was being asked to sentence upon. No findings of fact were made by her Honour. In many cases that will not matter because there will not be any dispute about precisely what had occurred, but in the present case it appears that there was some at least intrinsic dispute about what may have happened at the time of the offence, and it was incumbent upon the magistrate to make some inquiries to determine the precise facts upon which she was called to pass sentence.
One may say that I am in a similar position. However, I do have before me further material by way of the letter to which I have referred, which indicates that if a conviction is recorded against the appellant she will lose her working with children approval and this will bring her teaching career to an end. In my opinion, that would be a significantly disproportionate result compared to the nature of the offence.
That is particularly so when one notes that the appellant has no previous convictions and that she works in an area of need within the community. Indeed, the original letter from the deputy principal of the school where the appellant works which was placed before the magistrate speaks of her work in a supported learning class for students with a range of complex and diverse needs, including students with autism, intellectual disabilities and mental health disorders.
Having upheld the appeal and having received fresh evidence the matter comes before me afresh for me to exercise my sentencing discretion based upon the material which is before me. The submission has been made that I should impose a non‑conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act). Subsection (3) of that provision provides that in deciding whether to make a non‑conviction order I must consider the following: firstly, the offender's character, antecedents, age, health and mental condition; secondly, the seriousness of the offence; and thirdly, any extenuating circumstances in which the offence was committed.
I am satisfied that the appellant is a person of previous good character, and I note that she has, as I have said, no prior convictions whatsoever. She is currently 34 years of age. There is nothing before me to indicate that she has any physical illness which would be relevant to sentencing. However, there is material before me that suggests that the appellant was somewhat emotionally unstable at the time of this offence as a consequence of having lost a child some 18 months earlier. This is not only a mental condition but, in my view, it is an extenuating circumstance in which the offence was committed.
It is true, as the magistrate pointed out, that this was a domestic violence offence, and that is something that needs to be considered. However, there is no rule of law to the effect that a domestic violence offence cannot be the subject of a non‑conviction order. Certainly, the fact that it is a domestic violence offence feeds into the consideration of the seriousness of the offence. But a non‑conviction order may still be made depending upon the cogency of the other matters that are referred to in the section.
Subsection (3) of s 17, of course, provides mandatory considerations for the Court to consider before making a non‑conviction order. However, those are not the only considerations that the Court may consider. The Court may consider other relevant considerations. Such a consideration on this occasion is the fact that the appellant will lose her employment if a conviction is recorded. As I already indicated, in my view, that is a very significant matter because that would result in an outcome which is completely out of keeping with the seriousness of the offence.
I note that the magistrate made a reference to the necessity for any sentence imposed to have an element relating to specific deterrence. However, I cannot see that there is any requirement demonstrated for specific deterrence to play a part in sentencing with respect to this matter. I do accept that general deterrence is a relevant sentencing consideration. But balancing all of the matters to which I have referred, I am satisfied that a non‑conviction order with a good behaviour order under s 13 of the Crimes (Sentencing) Act should be imposed. The conviction imposed by the magistrate will be set aside, and without recording a conviction there will be a good behaviour order for a period of 12 months from today.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 21 August 2018 |
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