SE v Ruhen
[2019] ACTSC 190
•16 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SE v Ruhen |
Citation: | [2019] ACTSC 190 |
Hearing Date: | 16 July 2019 |
DecisionDate: | 16 July 2019 |
Before: | Murrell CJ |
Decision: | Appeal is dismissed. Orders of the Magistrates Court confirmed. |
Catchwords: | APPEAL – APPEAL TO SUPREME COURT – Application to adduce further evidence – Nature of appeal APPEAL – APPEALS AGAINST SENTENCE – Common assault – Family violence – Whether recording of conviction is manifestly excessive |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5193 Crimes Act 1900 (ACT) s 26 Magistrates Court Act 1930 (ACT) ss 208, 214 |
Cases Cited: | Allesch v Maunz [2000] HCA 40; 203 CLR 172 Balthazar v The Queen [2012] ACTCA 26 The Queen v Ang [2014] ACTCA 17 |
Parties: | S E (Appellant) Carl Dietrich Fabian Ruhen (Respondent) |
Representation: | Counsel R Abbas (Appellant) B Shaw (Respondent) |
| Solicitors R & J Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 14 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 30 January 2019 Case Title: The Police v S E Court File Number: CC 12253 of 2018 |
Murrell CJ
The Appeal
On the day listed for the defended hearing of three counts of common assault, the appellant pleaded guilty in the Magistrates Court to one count of common assault. The charge was a rolled-up charge encompassing several batteries against the appellant’s daughter that had occurred on 2 October 2018. Prior to the plea, there had been discussions between the prosecution and the defence concerning the appropriate charge, and it was in that context that the plea was entered relatively late in the piece.
An offence against s 26 of the Crimes Act 1900 (ACT) carries a maximum penalty of two years' imprisonment, a relatively low maximum penalty by comparison to many other maximum penalties.
On 30 January 2019, the Chief Magistrate sentenced the appellant. Her Honour declined to make a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Instead, her Honour recorded a conviction, imposed a good behaviour order for 12 months and referred the appellant to restorative justice.
A person may appeal to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order in the same circumstances as they may appeal against a conviction: s 208(1) of the Magistrates Court Act 1930 (ACT) (MCA).
The appellant appealed against the conviction and sentence on the following grounds.
(a)Her Honour erred in the exercise of her discretion in declining to impose a non-conviction order.
(b)The recording of the conviction was unreasonable, unjust, and wrong.
(c)Her Honour failed to give adequate reasons for her decision to refuse a non-conviction order.
(d)Her Honour gave excessive weight to the seriousness of the offence and the need for general deterrence.
(e)When deciding whether to make a non-conviction order, her Honour erred in failing to consider whether “anything else” was relevant, within the meaning of s 17(4) of the Sentencing Act.
Section 17 of the Sentencing Act provides:
17Non-conviction orders—general
…
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b) a good behaviour order under section 13.
…
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
…
In essence, the appellant claimed that the Chief Magistrate had exercised her sentencing discretion in the incorrect expectation that a conviction (as opposed to a non-conviction order) would significantly affect neither his registration as a medical practitioner nor his employment in the public health sector.
The appellant abandoned a claim of denial of procedural fairness.
Pursuant to r 5193 of the Court Procedures Rules 2006 (ACT), the appellant applied to adduce further evidence on the appeal relating to a number of factors, including his contribution to the medical profession within Australia and the impact of any conviction on his employment, financial circumstances and family relationships.
Facts before the Magistrates Court
At about 12:00 PM on 2 October 2018, the appellant was at home with his wife and 17-year-old daughter. He was lying on his bed. He called out to his daughter, asking her to show him her school results for the previous term. She showed him the results on her laptop. The appellant considered that the results were substandard. He became angry and began to shout at his daughter, questioning her application to her schoolwork.
While lying on his back on the bed, the appellant struck his daughter’s face with an open palm. She felt immediate pain and became fearful of the appellant. She retreated to the lounge room, but was followed by the appellant, who continued to shout at her.
The appellant placed both hands on his daughter's face and pushed her. She stumbled backwards slightly and then retreated towards her bedroom, where her mother was located. Before she reached her bedroom, the appellant grabbed his daughter by the back of her neck and pushed her head into the bathroom door, with enough force to cause severe pain to the left side of her head. The appellant pushed his daughter's head into the bathroom doorjamb a second time. She broke free and ran to her mother. She and her mother left the residence and called the police. When the police arrived, they were in tears.
Evidence of subjective circumstances before the Magistrates Court
In the Magistrates Court, a pre-sentence report and numerous character references were tendered.
The appellant was 49 years old at the time of the incident. He had no criminal history. After the offence, he separated from his wife, to whom he had been married for 20 years. As a consequence, he was also separated from his daughter.
The appellant was raised in India, where he enjoyed a supportive upbringing. In 2007, he and his family migrated to Australia. In Australia, he qualified as a medical practitioner and thereafter practised in public hospitals. Recently, he had been employed as an emergency physician at Queanbeyan Hospital. He had engaged in voluntary work; he had raised funds for cancer patients and worked for the Red Cross.
The authors of the pre-sentence report stated that the appellant had accepted responsibility for his actions and expressed regret. He was assessed as being at low risk of general reoffending, and as suitable for interventions directed at anger management and impulse control.
Since the offence, the appellant had sought help from EveryMan, and had enthusiastically engaged with that organisation in relation to the psychological and relationship issues associated with the conduct in question.
The appellant was willing to undertake restorative justice and had been assessed as suitable.
The appellant had called no evidence as to the impact of conviction on his employment or future in the medical profession. It would appear from the transcript that the appellant’s legal representative in the Magistrates Court had anticipated calling evidence on the point from another medical practitioner but the practitioner had not attended court. The appellant’s legal representative had chosen to proceed rather than seek an adjournment or put evidence before the Court by another means. Consequently, the Chief Magistrate had proceeded on the basis of the very limited material before her and her own expectations in relation to the registration and employment requirements for medical practitioners.
Application to adduce further evidence
The appellant sought to adduce further evidence, being documentary evidence that updated his current employment, his daughter’s acceptance for a course of study in the US and his living situation, showing that as previously hoped, the appellant had returned to reside with his wife.
In addition, the appellant sought to adduce evidence concerning the impact of a conviction on professional registration within Australia and employment in the NSW public health system, and other material about the appellant’s past and present employment.
The appellant said that the further evidence would show that:
(a)Since the sentence was imposed, his daughter had enrolled as a foreign student in the US studying computer information systems and he had guaranteed her course fees, which were expensive. He was concerned that, if he lost his employment, she would be unable to undertake her ‘dream studies’ in the US. Also, the appellant was also concerned that the conviction would prevent him obtaining a visa to visit his daughter in the US.
(b)He continued to practice as a medical practitioner in the emergency department of a public hospital, an area of critical skill shortage;
(c)He wished to undertake advanced studies in medicine via a UK professional organisation; and
(d)A conviction would or may impact on his prospects of future employment and his income earning capacity.
The respondent opposed leave to adduce the further evidence, but not strenuously. The respondent submitted that most of the evidence could have been put before the Chief Magistrate, and the remaining material did not raise any matter that was not at least contemplated at the time of the lower court proceedings.
In relation to the admission of further evidence on a criminal appeal, s 214 of the MCA provides:
214Appeals in cases other than civil cases
(2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3)In an appeal to which this section applies, the Supreme Court must—
(a)if it considers it necessary or expedient to do so in the interests of justice—
…
(iii) receive the evidence, if tendered, of any witness; …
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b)the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
In Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at [37], Refshauge J described the relatively low threshold for the admission of further evidence under s 214(4), stating:
(i) the appellate court is obliged to receive the evidence if the conditions in the provision are satisfied, namely that the evidence is credible, it would have been admissible before the Magistrate, it was not adduced before the Magistrate and there is a reasonable explanation as to why it was not so adduced;
(ii) the provision does not apply to evidence of events which occurred subsequent to the completion of the proceedings before the Magistrate;
(iii) it does not have to be shown that it was not possible [for] the evidence to be adduced in the Magistrates Court; and
(iv) inadvertence or even a failure to appreciate the likely significance of the evidence may be a reasonable explanation.
These comments relate to evidence that could have been adduced when a matter was heard in the Magistrates Court. As to new material, there is a general power to accept such evidence under s 214(3)(a) if it is in the interests of justice to do so.
Somewhat reluctantly, I decided to admit all the further evidence.
Much of the evidence could have been adduced before the Chief Magistrate and was relevant to the arguments that the appellant wished to advance before her Honour. The explanation as to why the material was not adduced before her Honour was that the appellant’s legal representative did not make full inquiry concerning the appellant’s background as a medical practitioner, and the requirements for registration and employment in the public sector, although (in the appellant’s submission) the material was potentially important to the submission concerning a non-conviction order. This evidence was admitted under s 214(4). In Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 (Lukatela), Rares J observed that the principal purpose of s 214 of the MCA was to give the appeal court a discretionary power to admit further evidence to demonstrate that the order under appeal was erroneous.
The material relating to events that had occurred after the Magistrates Court proceedings was admitted under s 214(3), on the basis that it was in the interests of justice to admit it; the appellant said that it was critical to his key submissions on the appeal.
It is well established that an appeal under s 208(1) of the MCA is an appeal by way of rehearing: Lukatela at [17]–[24]. Although the appeal court may receive further evidence, it may intervene only where the appellant has demonstrated that, having regard to all the evidence before the appeal court, the order of the Magistrates Court was the result of a legal, factual, or discretionary error: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23]. The admission of further evidence does not change the nature of the appeal to a hearing de novo, and it is only if error is demonstrated that the appeal court can substitute its own decision based on the evidence before it.
It will be apparent from the reasons that follow that, in this case, the further evidence did not demonstrate a factual, legal or discretionary error; rather, it confirmed the accuracy of the Chief Magistrate’s expectations about the factual impact of a conviction on the appellant’s registration as a medical practitioner, his employment in the public health system and other matters.
Reasons for decision in the Magistrates Court
In her reasons for decision, the Chief Magistrate made the following observations:
(a)Within the spectrum of offences prosecuted as a common assault, the offence was of mid-range objective seriousness. It was a family violence offence against a young person in the appellant’s care. The appellant’s actions were a breach of trust. Although the offence was brief, it involved three batteries. Her Honour remarked that, “If the offence had not been a first offence it would at least have attracted a community service order reflecting its objective seriousness”.
(b)The appellant was a person of prior good character who had contributed to the community through his professional life and support for charities, and good character was of particular significance given that he was 49 years of age.
(c)The appellant was genuinely remorseful. He was at low risk of reoffending.
(d)The appellant had engaged enthusiastically with EveryMan and that organisation was negotiating an arrangement between the appellant and his family with a view to a possible reconciliation.
(e)Although there was little need for personal deterrence, as the offence was a family violence offence it called for a significant message of general deterrence.
The appellant’s legal representative asked for a conditional discharge under s 17 of the Sentencing Act, having regard to the appellant's prior good character, the impact of a conviction on the appellant’s employment, and his serious efforts at rehabilitation. The prosecution opposed a non-conviction order, noting that there was no evidence before the Magistrates Court regarding the impact of a conviction on the appellant’s employment.
The Chief Magistrate reasoned:
It is certainly open to the court to consider proceeding under section 17 of the [Sentencing Act] in relation to any type of offence. In your favour in that respect is your excellent character generally and that is so in a person who has a number of years behind them.
It is put before me that as a medical practitioner, a conviction may at some stage have an impact on your future career.
Whilst I accept that it is something which may be looked at by a professional body, I am satisfied that any such body would look behind a mere conviction and look to consider the circumstances of the offending and make any assessment accordingly. I am not satisfied that that, in itself, is a basis to exercise my discretion.
Her Honour decided to take “the usual course” and record a conviction but to impose a lenient sentence, being a 12-month good behaviour order, as well as referring the matter for restorative justice.
When the Chief Magistrate referred to the recording of a conviction as being “the usual course”, her Honour was no doubt referring to the line of authority discussed in Proud v Sladic [2014] ACTCA 26, where this Court reiterated at [42] that the failure to record a conviction is an exceptional outcome and noted that the ordinary consequence of a finding of guilt was the recording of a conviction, as discussed in Balthazar v The Queen [2012] ACTCA 26 at [53].
Grounds 1 and 2: manifestly excessive sentence
The appellant submitted that the making of a non-conviction order was obviously the appropriate outcome and the failure to make the order would cause this Court to infer an error in the exercise of discretion, i.e. to find that the imposition of a conviction was an unreasonable, unjust, and/or plainly wrong exercise of the sentencing discretion.
The appellant submitted that the proposition was strengthened by the further evidence that had been admitted.
The appellant submitted that when exercising the discretion in relation to whether a non-conviction order should be made, it must be inferred that the Chief Magistrate had failed to take all relevant considerations into account, including:
(a)the appellant’s community contributions;
(b)the letters from his wife and daughter;
(c)the impact of a conviction on the appellant's ability to practise as a doctor; and
(d)the extenuating circumstance that personal stress concerning his daughter’s unexpectedly poor academic results explained the appellant's uncharacteristic behaviour.
As to the failure to take into account the appellant’s community contributions, her Honour expressly referred to the appellant’s contributions.
There is no reason to believe that her Honour failed to take into account the letters from the appellant’s wife and daughter. It was tendered before her Honour and there is no reason to think that her Honour did not take it into account.
The Chief Magistrate expressly considered the evidence, or lack thereof, concerning the impact of a conviction on the appellant’s ability to practise. The appellant’s legal representative had submitted:
He is a professional, your Honour, and is going to have to disclose any conviction at the hospital to his other professional societies as I understand it and it could be the difference between an appointment or not compared to 15 other candidates without a conviction.
As the further evidence placed before this Court on the appeal confirms, although her Honour had no evidence about the impact of a conviction on the appellant’s ability to practice as a medical practitioner, he Honour’s expectations about the impact (set out above at [34]) were correct. Exhibits 23 and 24 to the appellant’s affidavit on the appeal show that applicants for registration must inform the registration body about convictions, findings of guilt, and other such matters. Before making a decision about registration, the registration body will considers all the circumstances, affording an applicant the opportunity to put forward mitigating factors to explain a conviction and/or finding of guilt. In relation to employment of a medical practitioner by NSW Health, the position is similar.
The appellant’s legal representative submitted that the registration body and NSW Health were likely to view a conviction more seriously than a mere finding of guilt. There is some substance to that submission; a document from the registration body indicates that, within the hierarchy of matters of concern, a conviction sits just above a finding of guilt. Nevertheless, it is the surrounding circumstances that will dictate whether a conviction or finding of guilt is an insurmountable obstacle to registration.
Although the Chief Magistrate had no evidence regarding the impact of a conviction on the appellant’s employment, her Honour’s expectations in that regard were borne out by the evidence before this Court on appeal.
As to the argument that her Honour failed to take into account or, perhaps, give adequate weight to the extenuating circumstance that personal stress concerning his daughter’s unexpectedly poor academic results explained the appellant’s uncharacteristic behaviour, the Court was entitled to consider that this was either not an extenuating circumstance or not a relevant extenuating circumstance within the meaning of s 17(3)(c) of the Sentencing Act.
I have no doubt that, possibly because of cultural reasons, the appellant was particularly stressed at his daughter’s lack of academic performance and impulsively lost his temper and committed the offence.
However, that explanation is not extenuating. No parent should physically ventilate their stress at their child’s suboptimal academic performance, let alone in the manner that occurred in this case. I am far from persuaded that the appellant’s stress arising from his daughter’s academic results was a matter that could or should have operated as an extenuating circumstance that demanded the imposition of a non-conviction order.
Some judicial officers may have proceeded by way of non-conviction order although, as noted above, such an outcome is exceptional. But it was well within the Chief Magistrate’s discretion to impose a conviction and a lenient penalty.
Ground 3: failure to give adequate reasons for the refusal of a non-conviction order
In his submissions, the appellant submitted that the Chief Magistrate had failed to refer to the ACT Sentencing Database statistics that had been drawn to her attention and that her Honour should have explained how she took the statistics into account.
In the Magistrates Court, the appellant’s lawyer referred to the statistics, noting that 7.8 per cent of persons sentenced for common assault had received “some other order, which would include a non-conviction order”.
There was no need for the Chief Magistrate to refer to the statistics generally, or to the particular statistic relating to non-conviction orders. The Chief Magistrate’s reasons confirm that her Honour was well aware that a non-conviction order was an available outcome for an offence of common assault. The limitations of statistics are well known. The statistic that up to eight per cent of persons charged with common assault receive a non-conviction order does not assist in relation to whether that would be an appropriate outcome in the circumstance of this particular case where, as noted above, the objective seriousness of the offence was determined to be mid-range.
Ground 4: excessive weight given to the seriousness of the offence and the need for general deterrence
A reading of her Honour’s reasons does not establish that she gave “excessive weight” to the objective seriousness or the purpose of general deterrence. In any event, where a sentence is not manifestly excessive, how can one conclude that a relevant consideration has been afforded excessive weight”? There has to be an error before the Court will interfere. The error needs to be a specific error or an error in the exercise of discretion that is necessarily inferred because of the manifestly excessive sentence.
There is no substance to this ground. The Chief Magistrate made it quite clear that she had considered whether a non-conviction order was appropriate and had decided that, despite the appellant’s strong subjective circumstances, the objective seriousness of the offence combined with sentencing purposes including general deterrence were such that she should not take the exceptional course of making a non-conviction order.
Ground 5: failure to apply s 17(4) of the Sentencing Act
The appellant noted that, pursuant to s 17(4) of the Sentencing Act, when deciding whether to make a non-conviction order, a sentencing court may take into account “anything else” that it considers to be relevant.
The appellant submitted that the Chief Magistrate should have taken into account the impact of a conviction on his economic and financial wellbeing and that of his family, but failed to do so. In this regard, the appellant referred to registration requirements, the need for an emergency department physician to undertake a working with children check, and the risk that a conviction for a family violence offence would prevent the appellant from retaining registration and/or working as an emergency department physician where he may be required to work with children.
As discussed above, the evidence on the appeal showed that the recording of a conviction would not have a significantly greater impact upon the economic and financial wellbeing of the appellant and his family than would a finding of guilt; the authorities would consider either a conviction or a finding of guilt but it was the context of the conviction or finding that would be determinative.
As indicated above, it was open to the Chief Magistrate to proceed by way of a non-conviction order. However, it was well open to her Honour to decide that she would not do so. The sentence was not inappropriate and it was certainly not “so dramatically inappropriate that error of some kind must be inferred”: The Queen v Ang [2014] ACTCA 17 at [24].
Orders
The appeal is dismissed and the orders of the Magistrates Court are confirmed.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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