SCHEVING v Police - [2012] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHEVING v POLICE
[2012] SASC 15
Judgment of The Honourable Justice Vanstone
7 February 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Appeal against sentence – appellant found guilty by a magistrate of indecent assault – appellant touched victim on side of her body while he was holding his erect penis during a professional waxing procedure – whether Magistrate erred in taking sentence of imprisonment as a starting point – whether Magistrate failed to consider appellant’s personal circumstances when determining whether to impose a sentence of imprisonment – whether sentence manifestly excessive – whether magistrate erred in recording a conviction.
Held: appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 11, referred to.
Ironside v Police (1999) 106 A Crim R 448, distinguished.

SCHEVING v POLICE
[2012] SASC 15
Magistrates Appeal: Criminal

VANSTONE J: After a trial in the Magistrates Court the appellant was convicted for indecent assault. He was sentenced to eight months imprisonment, which sentence was suspended upon him entering into a bond in the sum of $500 to be of good behaviour for two years. He appealed against both the conviction and the sentence. A single judge of this Court allowed the appeal against conviction and found it unnecessary to deal with the appeal against sentence. However, upon a police appeal to the Full Court the conviction was restored. I was a member of that Court and it now falls to me to determine the appeal against sentence.
Background
The facts, as found by the magistrate, included the following. The appellant attended a beauty salon on 30 January 2010 for the purpose of having body hair removed. He had previously made a telephone booking. The salon was run by its sole proprietor, the complainant. She was alone in the rooms rented by her for the purposes of the business. The appellant undressed and initially laid face down on a massage table, the complainant placing a towel over his lower body. After she had waxed his back and bottom, the appellant turned over so that his chest and abdomen could be waxed. The complainant’s evidence was that at the point when she began to wax his abdomen, the appellant’s demeanour changed, he stopped chatting with her and started looking around the room and shifting on the table. At that stage she became uneasy and apprehensive. Because the procedure was nearly finished she determined to continue with it. During the final stages of the waxing she turned away from the table and then, on turning back, observed that the towel no longer covered the appellant’s genitals. At the completion of the waxing the complainant again turned away and then realised she…

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 SCHEVING v Police

Details

AGLC: SCHEVING v Police [2012] SASC 15
Case: [2012] SASC 15
Decision Date: 7 February 2012

CaseChat Overview and Summary

In the case of Scheving v Police, the appellant was found guilty by a magistrate of indecent assault following an incident during a professional waxing procedure where he touched the victim on the side of her body while holding his erect penis. The appellant sought to appeal against his sentence, arguing that the magistrate had erred in taking imprisonment as a starting point, failed to consider his personal circumstances, and that the sentence was manifestly excessive. Additionally, the appellant argued that the magistrate erred in recording a conviction.

The court was required to decide whether the magistrate had erred in his approach to sentencing, particularly in taking imprisonment as a starting point and considering the appellant's personal circumstances. The court also needed to determine whether the sentence was manifestly excessive or inadequate and whether the magistrate had erred in recording a conviction. The appeal hinged on the court's assessment of the magistrate's sentencing discretion and the relevance of the appellant's personal circumstances.

The court found that there was no error in the magistrate’s approach to sentencing. The court held that the magistrate was entitled to take imprisonment as a starting point given the nature of the offence and its seriousness. The court also found that the magistrate had appropriately considered the appellant's personal circumstances, and that the sentence imposed was within the area of discretion reserved for the magistrate. The court concluded that the sentence was not manifestly excessive and that the magistrate had not erred in recording a conviction.

The appeal was dismissed, and the sentence and conviction remained as imposed by the magistrate.

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

There being no error in the magistrate’s approach and the sentence imposed being within the area of discretion reserved to him, the appeal must fail.Conclusion For the foregoing reasons, I consider that the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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