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

1. 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

2. 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 was being touched on her side between her breast and hip.  When she turned back she saw that the appellant was touching the side of her body with one hand and touching his erect penis with the other.  She said to him, “What do you think you are doing? Stop that”, in response to which he invited her to take her top off.  The complainant became distressed and left the rooms, going for assistance to the business place of another tenant in the building.  She asked that man to go to her premises and take payment from the appellant, which he did. 

3. The magistrate sentenced the appellant on the same day upon which he delivered his reasons for decision.  Consequently, his remarks were made ex tempore and were brief.  Since there has been some criticism of aspects of those remarks I shall set out the relevant part.  Having remarked that the complainant was clearly distressed by the appellant’s behaviour and that it occurred at a time when he was sexually aroused the magistrate said as follows:

   [2]She was working in a one-on-one situation where she was in the circumstances as they emerged quite vulnerable. I take into account that the touching was outside her clothing and I think it is appropriate to make the observation that it was not the most intrusive and certainly not the most extreme form of indecent assault. Nevertheless it was to be characterised as indecent and it was frightening to her.

   [3]The courts have taken a stern view with respect to such conduct and a sentence of imprisonment is the appropriate starting point. Placing this matter in the lower range of indecent assaults I would impose a sentence of eight months imprisonment. I consider the question of suspension. I have regard to the fact that you are a first offender, that you have worked in the social welfare field since your arrival in this country and you have shown a community-minded approach to work, being content to work in jobs which are not very well paid. I conclude that there are good reasons to suspend the sentence.

4. The appellant contends that the remarks disclose error in two respects. First it is put that, since the magistrate classified the offence as being in the lower range of indecent assaults it was inappropriate to take as a starting point a term of imprisonment. That error, it was said, was underlined by the fact that the magistrate made no reference to s 11 of the Criminal Law (Sentencing) Act 1988 (SA) which provides that imprisonment may only be imposed where any lesser penalty would be inappropriate. Reference was made to a decision of Duggan J in Ironside v Police (1999) 106 A Crim R 448, in which his Honour considered that, in the circumstances of that case, the magistrate should have explicitly considered s 11 prior to imposing a sentence: see Ironside at [8].There the magistrate imposed a sentence of 14 days for two breaches of a restraining order without explaining why a sentence of imprisonment was required.

5. The second criticism was that from the remarks it appeared as if the magistrate had taken the appellant’s prior good record and favourable personal circumstances into account only on the question of suspension, as opposed to also weighing them on the question of the penalty to be imposed.

6. In any event, it was argued that the sentence was manifestly excessive.

   Analysis

7. I do not agree that the sentencing remarks either disclose error or leave open the possibility of a flawed approach.  It is true that the magistrate described the offence as being at the lower end of the range of indecent assaults.  As I read the remarks he was primarily referring there to the physical acts involved, rather than describing the whole of the circumstances surrounding them.  Because the surrounding circumstances, or the setting in which the offence occurred, also characterise the seriousness of the offence.  Even so, having regard to the fact that the maximum penalty for indecent assault is eight years imprisonment, it cannot be said that a sentence of eight months indicates other than that the offence was seen at the lower end of the range of such offences. 

8. Again, I do not accept that the remarks indicate that the magistrate had no regard to the appellant’s personal circumstances in setting the head sentence. The magistrate had just heard the submissions by counsel for the appellant and plainly the whole of the circumstances of the offence and the offender were in his mind. I agree with the magistrate that it was at the point of considering whether the sentence imposed could be suspended that the good prior record and personal circumstances generally of the appellant were most relevant. The fact that he did not mention those circumstances when discussing what penalty would be imposed does not, to me, indicate that he overlooked those matters. I do not agree that there was any need for him to mention the s 11 considerations. Plainly, this was not a case where the magistrate was minded to set a very short period of imprisonment in circumstances in which a lesser disposition might have been appropriate. I do not, therefore, see this case as raising the considerations relevant in Ironside.  In my view the magistrate was correct in concluding that the seriousness of this offence could only be reflected by the imposition of a sentence of imprisonment.  While the touching itself was fleeting and effected over clothing, the incident as a whole was extremely intrusive and frightening, and undermining of the confidence which a woman in the victim’s position requires to take on, and continue in, self-employment in the circumstances she did.  I see this as a serious offence.  I do not apprehend that in fixing the sentence the magistrate overlooked any aspect of the matter.

9. It is true that the sentence of eight months imprisonment is at the higher end of the range which I would have seen as appropriate for this offence, particularly bearing in mind the appellant’s prior good record.  However, I cannot say that it was outside the appropriate range. 

10. 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

11. For the foregoing reasons, I consider that the appeal must be dismissed.