SALHAN v Police - [2024] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SALHAN v POLICE
[2024] SASC 106
Judgment of the Honourable Justice McDonald (ex tempore)
25 July 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
This is an appeal against a sentence imposed by a Magistrate in the Berri Magistrates Court on 19 March 2024. On this date, the appellant pleaded guilty to one count of aggravated assault causing harm. The Magistrate imposed a bond to be of good behaviour for two years in the sum of $500 as well as recording a conviction for the subject offending.
The appellant appeals the Magistrate’s decision on the basis that the Magistrate erred in the exercise of the sentencing discretion by deciding to record a conviction against the appellant. The appellant contends that the recording of a conviction and the consequences that follow, including the appellant’s prospects of employment and application for Australian citizenship, result in a disproportionate outcome.
A further contention raised by the appellant is the submission made in relation to the position taken by the prosecution in the Magistrates Court regarding the recording of a conviction. It was submitted by the appellant, that the prosecution’s failure to make submissions that not recording a conviction would be beyond the exercise of the sentencing discretion prevented the appellant from advancing that contention in this jurisdiction.
Held; the appeal is dismissed:
1. The Magistrate did not err in the exercise of the sentencing discretion. The Magistrate’s decision to impose a conviction does not fall outside of the permissible range of sentences for the offender and the offence.
2. The prosecution, by not advancing submissions in the Magistrates Court that not recording a conviction would go beyond the exercise of the sentencing discretion, does not preclude the prosecution from advancing an argument that the Magistrate did not err in recording a conviction.
Criminal Law Consolidation Act 1935 (SA) s 20(4)(b); Sentencing Act 2017 (SA) s 97(1); Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1, referred to.
R v Wilton (1981) 28 SASR 362; R v Nemer (2005) 87 SASR 40; House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Lowndes v The Queen (1999) 195 CLR 665; R v Briese; Ex parte Attorney-General (1997) 92 A Crim R 75; R v Stubberfield (2010) 106 SASR 91; MacGregor v Police (1995) 66 SASR 269; R v Hoffman [2017] SASCFC 15, applied.

SALHAN v POLICE
[2024] SASC 106
Magistrates Appeal: Criminal

McDONALD J (ex tempore): This is an appeal against a sentence imposed in the Berri Magistrates Court on 19 March 2024. On that date, the appellant pleaded guilty to one count of aggravated assault causing harm.[1] The circumstance of aggravation was that the victim of the offence was his wife.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SALHAN v Police

Details

AGLC: SALHAN v Police [2024] SASC 106
Case: [2024] SASC 106
Decision Date: 25 July 2024

CaseChat Overview and Summary

In the case of SALHAN v Police, the appellant appealed against his sentence on the grounds that the Magistrate erred in recording a conviction. The appellant was sentenced to a two-year good behaviour bond and fined $500. The sole ground of appeal was that the Magistrate should not have recorded a conviction against the appellant. The appellant argued that he should not have been convicted, given the mitigating circumstances of the case.

The legal issues that the court needed to decide were whether the Magistrate erred in her exercise of sentencing discretion by recording a conviction and whether there were any other relevant considerations that should have been taken into account. The court considered the nature and circumstances of the offence, the appellant’s personal circumstances, and any other relevant factors.

The court found that the Magistrate had not erred in recording a conviction against the appellant. The court noted that the appellant had admitted to slapping the victim twice during an argument, which constituted an assault. The court considered the appellant’s personal circumstances, including his qualifications, employment history, and lack of criminal history, but ultimately found that these factors did not outweigh the seriousness of the offence. The court also noted that the appellant had accepted responsibility for his actions and expressed remorse.

The court dismissed the appeal and affirmed the sentence imposed by the Magistrate. The court found that the sentence was appropriate given the circumstances of the case and that the Magistrate had taken into account all relevant considerations in exercising her sentencing discretion. The court also noted that the recording of a conviction was necessary to ensure that the appellant was aware of the seriousness of his actions and to deter him and others from engaging in similar conduct in the future.

Orders

Orders of the court

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Background

Background to the litigation

For this offence, the Magistrate imposed a two year good behaviour bond in the sum of $500,[2] and recorded a conviction. The sole ground of appeal was that the Magistrate erred in the exercise of her sentencing discretion by declining to not record a conviction against the appellant.[2] Sentencing Act 2017 (SA) s 97(1).The facts The Magistrate sentenced on a statement of agreed facts that had been produced by the parties. These were:[3]1.On 31 July 2023 there was an argument between [the appellant] and [the victim] as he was considering purchasing property in India. There had been arguments previously due to issues to do with her mother’s behaviour.2.The following day there was a further argument when [the victim] took [their son] and left him outside the toilet in the home. The toilet was being used by …, their housemate, and [the child] began knocking on the toilet door incessantly. [The appellant] took [the child] back to the room and counselled him against behaving in this way. At no point in time was he in any way rough with [the child] and he denies ever having been rough with him.3.As he was speaking to their son, [the victim] resumed the argument from the day before with [the appellant]. She was yelling abuse and vulgarities at him in the Punjabi language in the presence of [the child] and [the housemate]. She referred to [the appellant] as a “bastard” and said that she wished his parents and family were dead.4.She also grabbed the front of his shirt and pushed him repeatedly.5.[The appellant] pushed her hands away and as she continued yelling abuse and vulgarities at him, he slapped her twice.6.He accepts that notwithstanding [the victim’s] behaviour he should not have reacted as he did and he should instead have walked away.7.[The appellant] denies the other allegations of violence that [the victim] makes vociferously. [3] FDN 9 at 17. As a consequence of this assault, the victim suffered a bloody lip with associated swelling to the cheek and bruising to her right arm.The appellant’s personal circumstances The appellant is 34 years old and was born in India. He and the victim married in India in 2015. They moved to Australia in 2016, initially living in Perth before moving to Melbourne and then Renmark, where this offence took place. There is one child of the marriage, who is five years old. The appellant has no criminal history, nor was there any suggestion that the assault was part of an ongoing course of domestic violence. The appellant was sentenced on the basis that the offending occurred in isolation in the context of a deteriorating relationship. The appellant is highly qualified, having obtained a Bachelor of Commerce from the Punjab University, an MBA from the Punjab Technical University, a Masters of Professional Accounting and Business Administration from Holmes College in Victoria, and a Certificate III in Painting and Decorating from Della International College in Sunshine, Victoria. In India, the appellant worked as an accountant. During his time in Perth, the appellant undertook an English course and then worked as a farm worker for a year after he moved to Victoria. He then worked for about 18 months on a dairy farm before taking up a position as a painter. The appellant has continued to work as a painter since he has moved to South Australia. He has his own painting business, however, when work is slow, he picks up casual painting work with another business.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DONALD J

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Ratio Decidendi

Legal Principle Established

Established by: DONALD J

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