Shane Jolejole v Shawali Walizada
[2010] ACTSC 146
•22 NOVEMBER 2010
SHANE JOLEJOLE v SHAWALI WALIZADA
[2010] ACTSC 146 (22 NOVEMBER 2010)
CRIMINAL LAW – appeal from ACT Magistrates Court – appeal against sentence – whether sentence manifestly inadequate due to failure to record a conviction – s 17 of the Crimes (Sentencing) Act 2005 – non-conviction order – magistrate took into account all relevant matters – appeal dismissed.
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing Act) 2005 (ACT), ss 17, 34(1)(f)
Cobiac v Liddy (1969) 119 CLR 257
Commissioner of Taxation v Baffsky (2002) 192 ALR 92
Jones v Morley (1981) 29 SASR 57
Dinsdale v The Queen (2000) 202 CLR 321
Davies v Conroy [2005] ACTSC 8 (14 February 2005)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 17 of 2009
Judge: Gray J,
Supreme Court of the Australian Capital Territory
Date: 22 November 2010
IN THE SUPREME COURT OF THE )
) No. SCA 17 of 2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SHANE JOLEJOLE
Appellant
AND:SHAWALI WALIZADA
Respondent
ORDER
Judge: Gray J
Date: 22 November 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
On 26 September 2008 in the ACT Magistrates Court, a magistrate found proved against the respondent, Shawali Walizada, two offences of committing an act of indecency and one offence of attempting to commit an act of indecency on the complainant without the consent of that person and knowing that she had not consented.
The learned magistrate sentenced the respondent on 27 February 2009. Without proceeding to a conviction on the charges, his Honour made a good behaviour order requiring compliance with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months and subject to a probation condition.
The Director of Public Prosecutions appeals against the sentence. The appeal is confined to the contention that a conviction on each charge should have been recorded.
Background
On 28 December 2007, the respondent was driving his taxi. At about 3.30 am that day, the complainant and a female friend flagged down the respondent’s taxi on Melrose Drive near Curtin. They had intended to travel to the complainant’s residence in Torrens. They asked the respondent to stop at the BP service station at Phillip to buy cigarettes and then they continued on to Torrens, where the complainant asked him to stop near a house in Torrens. Over the course of this journey, the magistrate found that two acts of indecency and one attempted act of indecency occurred.
The complainant said that she had been in Civic from about 11.00 pm for about two to three hours. During this period she had consumed alcohol and considered her sobriety to be about three out of 10 on a scale of which one was sober and 10 was very drunk. She travelled into Civic with her boyfriend and later he drove them home. During the course of that journey, the complainant felt unsafe due to the manner of her boyfriend’s driving. The car was stopped and both the complainant and her female friend got out and walked towards Curtin. Near Curtin, they flagged the respondent’s taxi down.
During the course of the journey in the taxi, the complainant was sitting in the front seat and her female friend sat in the back seat. The respondent kept saying to the complainant and her friend that they were beautiful.
The complainant said that the first incident took place when the respondent touched her on top of her clothing towards the inner aspect of her right thigh with his hand as they were travelling to the service station. The complainant did not say anything, but moved towards the left hand car door and away from the respondent. It was after this incident that the respondent was asked to stop at the service station for cigarettes.
The complainant said that the second incident took place at the petrol station or shortly after. The complainant said that the respondent reached out towards her when she was wearing a seat belt with the car door closed. In her words, “it seemed like an accident, he didn’t completely grab me, he sort of grabbed me but brushed past at the same time”.
The third incident, the attempt, took place after the taxi had stopped. The respondent got out of the taxi and asked the complainant’s friend for a hug. She consented and he hugged her. He then turned and hugged the complainant. The complainant patted him on the back. The magistrate noted that he could not be satisfied beyond reasonable doubt that during the hug the respondent knew that she was not consenting or was reckless. However, after the complainant was hugged by the respondent, he put his arm around her back and used his other hand to try and force her face towards his face so that he could kiss her. The magistrate found that this constituted an attempt to commit an act of indecency.
The respondent denied that any of these three incidents described by the complainant took place. However, the magistrate was satisfied beyond reasonable doubt that the respondent committed each of the acts alleged without the complainant’s consent. On 26 September 2008 the magistrate gave written reasons for his decision finding the charges proved.
The magistrate considered the application of s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and determined to make a non-conviction order. His reasons in that regard were:
Mr Sabharwal, who appears on behalf of Mr Walizada, has submitted that I should deal with the matter pursuant to section 17 of the Crimes (Sentencing) Act 2005 without recording a conviction. That course is opposed by Ms Byrne on behalf of the Director of Public Prosecutions, for the reason to which I have referred, being that the offence occurred whilst the defendant was a driver of a taxi and in breach of the trust placed in him by the complainant as a taxi driver.
Section 17(3) of the Crimes (Sentencing) Act provides that in deciding whether to make a non-conviction order, the court must consider the offender’s character, antecedence, age, health and mental condition, also the seriousness of the offence and any extenuating circumstances in which the offence was committed.
With respect to the offender’s character, as I have said, there is evidence before me that this conduct was out of character and that he had no previous convictions with respect to any matters either in this country or in his country of origin. I have already referred to his antecedence and his age and there is nothing in terms of the defendant’s health and mental condition which has been put before me which would be relevant to sentencing.
I have noted that the offence itself cannot be described as being trivial, but that the individual offences may be aptly described as towards the bottom of the range of the range of offences under Section 61 of the Crimes Act. Mr Sabharwal has frankly put before me the proposition that there is no real explanation to be made by the defendant for his acts on this occasion and as such he has not suggested that there are any extenuating circumstances in which the offence was committed.
Having considered all of the matters which have been put before me and with some hesitation, I accede to the submission which is made by Mr Sabharwal that I proceed without the recording of a conviction.
The appeal
Apart from the grounds of appeal that the sentence was manifestly inadequate and in error, the grounds of appeal complain of a failure to give sufficient weight to a number of matters. Those matters were lack of remorse, breach of position of trust, seriousness of the offence, general deterrence and punishment.
On the hearing of the appeal, it was acknowledged by counsel for the Director of Public Prosecutions that no specific error could be identified in the approach taken by the magistrate but it was said that the failure to record a conviction was the manifest inadequacy founding the complaint of this appeal.
Although attention was directed to what was said to be the inadequacy of the sentence, it was not put, nor could it have been, that the magistrate could not exercise the discretion conferred by s 17 of the Sentencing Act in acting as he did. Section 17 provides:
17Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(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.
Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(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.
Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
The way the discretion involved in a provision like s 17 of the Sentencing Act should be exercised has been authoritatively determined by the High Court in Cobiac v Liddy (1969) 119 CLR 257 (Cobiac v Liddy) which considered equivalent South Australian legislation. In that case, Windeyer J said (at 276):
... the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers “having regard to” the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.
In Cobiac v Liddy (at 265), the majority of the High Court, Barwick CJ, Kitto and Owen JJ (at 265) determined that there was material on which the magistrate in that case could exercise the discretion conferred by the equivalent South Australian provision.
It was suggested by Spigelman CJ in Commissioner of Taxation v Baffsky (2002) 192 ALR 92 that there may be a difference in approach between Windeyer J and the majority in Cobiac v Liddy. Spigelman CJ commented (at 99 [24]):
Windeyer J appears to apply a test that one of the specified matters must of itself justify the finding of inexpediency, but that in determining that question the full range of relevant considerations may be taken into account. The joint judgment proceeds on the basis that any matter relevant to the issue of expediency can be taken into account in the ultimate exercise of the discretion, whether or not that factor itself falls within one of the facts and matters specified in the respective subparagraphs [the Commonwealth provision equivalent to s 17.]
Spigelman CJ was inclined to think that the “whole of the circumstances of the offender and the offence” referred to by Windeyer J and his broad approach meant there is little practical difference in the approaches.
In fact, s 17(4) of the Sentencing Act now specifically empowers the Court to consider anything else that the Court considers relevant.
In the present case, the magistrate expressly averted to each of the matters referred to in s 17(2) of the Sentencing Act. As can be seen from his Honour’s ex tempore remarks quoted at [11], he found nothing relevant in the terms of the respondent’s health and mental condition and did not regard there being any extenuating circumstances in which the offence was committed. His Honour did not regard the offence as trivial (which was a relevant consideration under the predecessors to the present s 17 of the Sentencing Act) but as far as the seriousness of the offences were concerned, his Honour correctly described them “as towards the bottom of the range of offences” of that kind.
I can find nothing in the remarks of the magistrate that indicate his Honour took into account any irrelevant consideration or overlooked a relevant matter to which s 17 of the Sentencing Act required his Honour to address.
As I have said, the grounds of appeal do not allege any defect in the magistrate’s approach to s 17 of the Sentencing Act but rather refer to what is said to be a failure to give sufficient weight to the respondent’s lack of remorse, breach of position of trust, seriousness of the offence and general deterrence and punishment.
In that regard, it may be said that the fact that the respondent did not demonstrate remorse by pleading guilty, as the prosecution’s written submissions seem to indicate is not a factor to take into account (see s 34(1)(f) of the Sentencing Act) where the Court is enjoined not to increase the severity of a sentence where an offender chooses to plead not guilty. As far as each of the other matters was referred to in the grounds of appeal, they were each specifically considered by the magistrate in his Honour’s ex tempore remarks. There is no indication in those remarks that would show that his Honour did not give sufficient weight to each one. Of course, the issue of what weight he did give them is very much a matter for the exercise of his discretion.
A distinctive feature of the submissions in the sentencing proceedings put on behalf of the respondent was his character and antecedents. Those matters clearly influenced the magistrate’s decision. As was said by King CJ (with whom Jacobs and Mohr JJ agreed) in Jones v Morley (1981) 29 SASR 57 (at 63):
The word “antecedents” is “as wide as can be conceived”; R v Vallett [1951] 1 All ER 231, per Lord Goddard CJ at p 232. It is certainly wide enough to include all aspects, favourable and unfavourable, of an offender’s background, past life, personal, family, social, employment and vocational circumstances, and of his current way of life and its inter-action with the lives and welfare of others.
In respect of the respondent’s antecedents, the magistrate observed:
I take into account, in sentencing the defendant, the testimonials that have been put before me and note in that regard it is clear that Mr Walizada is perceived as being a very hard working family man who has achieved much for himself and his family in his life despite a number of hardships.
In his country of birth he was a cartographer, however his English is not of a sufficient standard to be – to enable him to undertake professional work in that field in Australia, and as such he has been obliged to undertake employment of what would be considered, I presume, as a lesser nature or a lesser nature than the professional work that he undertook in this country of origin.
Nevertheless it is quite clear, as I have indicated that he has worked very hard in order to make a new home for himself and his family. The testimonials before me are to the effect that the behaviour of the defendant with respect to these charges is totally out of character.
As well, the magistrate observed:
I note that he is 53 years of age and that he drives taxis for a living. He has an extensive mortgage, which he services from his employment. It’s clear that he has encouraged his children to obtain education and that they have been largely successful in the endeavours that they have undertaken to date.
There is evidence before me of positive good character on the part of the defendant, not simply evidence of a lack of bad character.
It may be further observed that the magistrate expressed himself as having considered all the matters put before him “and with some hesitation” acceded to the request that he not record a conviction.
In Dinsdale v The Queen (2000) 202 CLR 321 (at 340), Kirby J (with whom Gaudron and Gummow JJ agreed) observed:
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
In my opinion, this is not such a case. It is not a case like Davies v Conroy [2005] ACTSC 8 (14 February 2005) where Moore J could theorise that there were possible reasons for the magistrate to have erred in exercising the discretion conferred by the predecessor to s 17 of the Sentencing Act. In the present case, there were grounds upon which a reasonable person could find it expedient, having regard to the matters specified in s 17 of the Sentencing Act to exercise the leniency permitted by that Act. I do not consider that the exercise of discretion can be said to have miscarried.
The appeal is dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the honourable Justice Gray.
Associate:
Date: 22 November 2010
Counsel for the Appellant: Ms K MacKenzie
Solicitor for the Appellant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr S Whybrow
Solicitor for the Respondent: Slater & Gordon
Date of hearing: 9 November 2009
Date of judgment: 22 November 2010
0