Sevim v Nell
[2018] WASC 222
•26 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SEVIM -v- NELL [2018] WASC 222
CORAM: MCGRATH J
HEARD: 25 JULY 2018
DELIVERED : 26 JULY 2018
FILE NO/S: SJA 1003 of 2018
BETWEEN: IBRAHIM SEVIM
Appellant
AND
MARK PETER NELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M M FLYNN
File Number : PE 33649 of 2017
Catchwords:
Criminal law - Sentence - Indecent assault - Fine imposed - Implied error - Quantum of fine manifestly excessive - Sentence set aside - Reduced fine imposed
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Criminal Code (WA), s 323
Sentencing Act 1995 (WA), s 6, s 9AA, s 56
Result:
Leave to appeal granted
Appeal allowed
Sentence set aside
Fine imposed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P J Urquhart |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Kate King Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hussaini v Szolnoski [2013] WASC 64
Johnson v Hayter [2001] WASCA 118
Knott v Moriaty [2010] WASCA 36
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Narkle v Hamilton [2008] WASCA 31
Riggall v The State of Western Australia (2008) 37 WAR 211; 182 A Crim R 517
RJB v The State of Western Australia [2009] WASCA 49
SA v McKinnon [2009] WASC 7
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sgroi v The Queen (1989) 40 A Crim R 197
Victor v The State of Western Australia [2011] WASCA 94
MCGRATH J:
Introduction
Mr Sevim was charged with one offence of indecent assault contrary to s 323 of the Criminal Code (WA). Mr Sevim pleaded guilty on the first day of his trial and the magistrate imposed a fine of $18,000. Mr Sevim now seeks leave to appeal against the sentence that was imposed on the ground that the fine was manifestly excessive. That is, the quantum of the fine was unreasonable or plainly unjust.
For the following reasons, I have determined that the fine was unreasonable and plainly unjust and therefore that leave to appeal should be granted and the appeal must be allowed.
In these reasons for decision, I will consider the following:
(a)The charge.
(b)The Magistrates Court proceedings.
(c)The ground of appeal.
(e)An assessment of the merits of the appeal.
The charge
The prosecution notice dated 15 June 2017 pleads that Mr Sevim unlawfully and indecently assaulted the victim contrary to s 323 of the Criminal Code (WA).
The Magistrates Court proceedings
On 19 December 2017, Mr Sevim appeared before his Honour in the Magistrates Court. Mr Sevim was represented by a legal practitioner. The magistrate read the charge to Mr Sevim and he pleaded guilty to that charge.[1]
[1] ts 4 (19/12/17).
The facts were then read to the court in the following terms:[2]
The victim was working there at the time. The accused has known the victim since she was 18 years old. That's for approximately 10 years. They met through one of the accused's daughters. The accused has embraced the victim, as they usually did do. However, this time, he has kissed her on the right side of her neck. This has made the victim feel uncomfortable, and she created some space by taking a box to the rear of the store.
The accused has walked after the victim and asked her if she was working alone that night. The victim replied that she was. There were no other customers in the store at that time. The accused has cuddled and kissed the victim again telling her that he loved her. And, again, this made her feel uncomfortable. At this point, one of the accused's hands was on the victim's hip area. He moved his hand down to her groin area, and he touched her on her vagina fleetingly.
The victim has moved away saying, 'whoa, whoa'. The accused has then touched her on her stomach before leaving the store. The victim did not give the accused permission to touch her vagina at any time. The victim checked the store CCTV cameras to make sure that the incident was recorded. She considered her options and reported the incident to the police the next day.
[2] ts 6 (19/12/17).
The facts were accepted by Mr Sevim, though his counsel submitted that the embracing and kissing was Mr Sevim's normal cultural exchange of greeting with the complainant who he knew.[3] Further, the expression of love made by Mr Sevim towards the complainant was a statement that he had made previously reflecting that Mr Sevim was fond of the complainant but not in a sexual way.[4] The magistrate did not make a finding in respect of those points of clarification. However, when outlining the facts during his sentencing remarks the magistrate particularised the inappropriate touching as the touching of the vagina on the outside of the clothing.[5]
[3] ts 6 ‑ 7 (19/12/17).
[4] ts 7 (19/12/17).
[5] ts 12 (19/12/17).
In his sentencing remarks the magistrate observed that the touching to the vagina was brief and that it was over the complainant's clothing.[6] His Honour stated that the offending occurred in the complainant's workplace when she was alone.[7] The magistrate referred to the victim impact statement which outlined the profound effect that Mr Sevim's offending had on the complainant.[8] The magistrate outlined the very favourable personal circumstances of Mr Sevim who has no criminal record.[9]
[6] ts 13 (19/12/17).
[7] ts 13 (19/12/17).
[8] ts 13 (19/12/17).
[9] ts 13 (19/12/17).
The prosecution accepted that a custodial sentence was not appropriate and that the imposition of a fine was within discretion.[10] The magistrate determined that the appropriate disposition was a fine.[11] His Honour then proceeded to sentence Mr Sevim and imposed a fine in the sum of $18,000.[12] Further, his Honour ordered that half of the fine, being $9,000, should be paid directly to the complainant.[13] The magistrate declined to make a spent conviction order.[14]
[10] ts 12 (19/12/17).
[11] ts 13 (19/12/17).
[12] ts 13 (19/12/17).
[13] ts 13 (19/12/17).
[14] ts 13 ‑ 14 (19/12/17).
The grounds of appeal
The ground of appeal is in the following terms:
The sentence imposed was manifestly excessive to such an extent as to show implicit error having regards to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[15] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[16]
[15] Criminal Appeals Act 2004 (WA), s 9(1).
[16] Criminal Appeals Act, s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[17]
[17] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[18]
[18] Criminal Appeals Act, s 14.
The ground contends that the sentence imposed in respect to the offence was manifestly excessive. The ground therefore asserts implied error. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one that was open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[19]
[19] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed, or because the length of the term of imprisonment is manifestly long, or because the quantum of the fine is manifestly excessive. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[20]
[20] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
In considering this ground of appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[21]
[21] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
An assessment of the merits of the appeal
The issue for determination is whether the sentence, being a fine in the amount of $18,000, is manifestly excessive. The respondent accepts that a fine is a type of sentence that was open to the magistrate. However, the respondent contends that the fine imposed is not manifestly excessive.
The maximum penalty for the offence of indecent dealing is 5 years' imprisonment and 2 years' imprisonment and/or a fine of $24,000 when an offender is dealt with summarily. Whilst the maximum sentence that the magistrate could impose was one of 2 years' imprisonment, it is relevant to have regard to the statutory maximum and not merely the jurisdictional limit in assessing the seriousness of the offence.[22]
[22] Johnson v Hayter [2001] WASCA 118.
There are aggravating factors concerning the offending. There was an age disparity between Mr Sevim, who was 61 years of age, and the complainant who was 27 years of age. The offending occurred when the complainant was alone in her workplace and therefore, when she was vulnerable. The offending has had a profound effect on the complainant.[23]
[23] Victim Impact Statement dated 14 July 2017.
The personal circumstances of Mr Sevim, which were outlined in the plea in mitigation at the sentencing hearing, are most favourable.[24] Mr Sevim is 61 years of age with no criminal record. He has been married for 29 years and has five children. Mr Sevim, after arriving in Australia as an immigrant from Turkey in 1999, has always been gainfully employed. The magistrate observed that Mr Sevim has faced challenges in his life and that he has built a successful life over his 18 years living in Australia.[25] His Honour found that Mr Sevim was of previous good character.[26]
[24] ts 8 ‑ 9 (19/12/17).
[25] ts 13 (19/12/17).
[26] ts 13 (19/12/17).
Mr Sevim pleaded guilty on the first day of his trial. The magistrate did not expressly state the discount to be afforded to Mr Sevim for his plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA). It is appropriate that a discount, at the lower end, be given for the plea of guilty. The appellant expressed remorse for the offending.[27]
[27] ts 10 (19/12/17).
There is no tariff for sexual offending. No range is apparent in respect of the standards of sentencing observed in relation to indecent assault.[28] In circumstances where a touching occurs outside the clothing of the complainant and when the contact is relatively brief the sentence that should ordinarily be imposed is a non‑custodial one.[29]
[28] Riggall v The State of Western Australia (2008) 37 WAR 211; 182 A Crim R 517 [47] (Wheeler JA); RJB v The State of Western Australia [2009] WASCA 49 [46] (Owen, Wheeler and Miller JA).
[29] Narkle v Hamilton [2008] WASCA 31 [45].
The respondent referred to a number of comparative sentencing authorities: Sgroi v The Queen,[30] Hussaini v Szolnoski,[31] Victor v The State of Western Australia,[32] Knott v Moriaty,[33] SA v McKinnon,[34] and Narkle v Hamilton. Mr Sevim also relied upon Hussaini v Szolnoski and the authorities referred to in that decision.[35] I have considered those authorities. In Sgroi v The Queen, the offender was convicted of one offence of indecently assaulting a 10‑year‑old girl by touching her vagina on the outside of her clothing. The Court of Appeal resentenced the offender by imposing a fine of $5,000. It must be recognised that the offender in Sgroi v The Queen was sentenced in 1989. Since that time there has been an increase in the range of sentences customarily imposed for sexual offending. In Hussain v Szolnoski, which was decided in 2013, a fine of $4,000 was imposed for an indecent assault involving the touching the breast of an adult woman on the outside of her clothing. The Court import imposed a fine of $4,000. In imposing that quantum the court was mindful that the offender was incarcerated in immigration detention and therefore, had limited capacity to pay any fine.
[30] Sgroi v The Queen (1989) 40 A Crim R 197, 200 ‑ 201.
[31] Hussaini v Szolnoski [2013] WASC 64.
[32] Victor v The State of Western Australia [2011] WASCA 94.
[33] Knott v Moriaty [2010] WASCA 36.
[34] SA v McKinnon [2009] WASC 7.
[35] Hussaini v Szolnoski [2013] WASC 64 [19] ‑ [20].
Mr Sevim's conduct involved a spontaneous act of touching the vagina on the outside of the complainant's clothing. The contact was of short duration. Whilst recognising that the offending is serious and has caused much distress to the complainant, the offending is certainly not at the higher end of the range. Mr Sevim has excellent antecedents with no criminal record. Mr Sevim has expressed remorse. I have determined that the fine imposed by the magistrate was manifestly excessive. The appropriate fine is one of $7,000. In imposing that fine I am mindful of Mr Sevim's capacity to pay that fine.[36] There is no suggestion that Mr Sevim does not have the capacity to pay that fine. Mr Sevim is a small business owner who has always been gainfully employed. In any event, it is necessary that the fine imposed is a punishment that reflects the seriousness of offending and appropriately recognises the sentencing principles of general and personal deterrence.
[36] Sentencing Act 1995, s 53.
The magistrate ordered that half of the fine should be paid to the complainant pursuant to s 56 of the Sentencing Act 1995. At the sentencing hearing the prosecution appeared to submit that an order pursuant to s 56 of the Sentencing Act 1995 was appropriate.[37] At the hearing of this appeal Mr Sevim and the respondent agreed that it was appropriate to order that the fine or a part of the fine be paid to the complainant. Given that the magistrate did make that order, I will also order that half of the fine of $7,000 be paid to the complainant.
[37] ts 12 (19/12/17).
Conclusion
Accordingly, leave to appeal is granted on the ground of appeal and the appeal is allowed. The sentence of the magistrate is set aside and in lieu thereof a fine of $7,000 is imposed. I order that half of the fine, being $3,500, be paid to the complainant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH26 JULY 2018
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