Sharrad v Police - [2015] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SHARRAD v POLICE
[2015] SASC 26
Judgment of The Honourable Justice Sulan
25 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appellant charged with assault causing harm. He pleaded guilty and was sentenced to nine months' imprisonment with a non-parole period of six months, suspended on entering into a good behaviour bond for 18 months. Appeal on the grounds that the sentence was manifestly excessive and that the Magistrate erred by ordering a conviction be recorded. Appeal allowed. Sentence set aside and appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11, s 11(1)(a)(iv), s 11(1)(b), s 16, s 39, referred to.
R v Manuta (1989) 54 SASR 17; R v Agius (2000) 77 SASR 469, discussed.
McAvaney v Quigley (1992) A Crim R 457; Hodgins v Police [2008] SASC 176; R v Stubberfield (2010) 106 SASR 191; R v Yousef (2005) 155 A Crim R 134; MacGregor v Police (1996) 66 SASR 369; Buttigieg v Police (1999) 74 SASR 229, considered.

SHARRAD v POLICE
[2015] SASC 26
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence. The appellant, Louis James Sharrad, pleaded guilty to assaulting Haris Koutlakis, thereby causing him harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). The maximum penalty for the offence is three years’ imprisonment. The appellant was sentenced to six months’ imprisonment, suspended upon him entering into a bond in the sum of $200 to be of good behaviour for 18 months. The Magistrate started at nine months’ imprisonment and reduced it to six months’ imprisonment on account of the appellant’s plea of guilty.
The appellant contends that the sentence is manifestly excessive and the Magistrate was in error in recording a conviction.
Background
There was no dispute about the circumstances leading up to and consequent upon the assault.
Mr Koutlakis was at a party at a private residence at Grange. He had been drinking throughout the day and had consumed approximately 15 beers. It is not disputed that he was significantly intoxicated.
The appellant and his brother, who had been invited to the party, arrived at the premises at about 9.45 pm. Mr Koutlakis was leaving the party to go to another party at premises nearby. The appellant and Mr Koutlakis had known each other for approximately two years. There had been no animosity between them prior to the incident to which this offence relates. There was no dispute that Mr Koutlakis approached the appellant and his brother in an aggressive manner and, for no apparent reason, was abusing the appellant’s brother.
The appellant grabbed Mr Koutlakis around the throat and forcefully pushed him away. Mr Koutlakis stumbled backwards and fell, hitting his head. At the time, he was holding a bottle. The appellant was not aware that Mr Koutlakis had hit his head on the driveway. Immediately after he pushed Mr Koutlakis, other people became involved and a melee occurred. The appellant and his brother immediately left the premises. The appellant was not involved in the ensuing melee.
Mr Koutlakis was taken to the Queen Elizabeth Hospital Emergency Department. He was not admitted to hospital. He went home before he was examined at the hospital. The following morning, he was unwell. A general practitioner saw him and arranged for a scan to be performed. The scan revealed that he had suffered a fracture of his skull. There was some bleeding from the brain. He was admitted to the Royal Adelaide Hospital where he remained for approximately four days until he was released. He suffered no residual brain damage. However, as a result of the injury, a pre-existing hearing deficit was aggravated. He has suffered some further loss of hearing in one ear.
The appellant was unaware of the injury suffered by Mr Koutlakis until the following morning when he received a Facebook communication from a friend who advised him that Mr Koutlakis had been injured. The appellant immediately communicated with Mr Koutlakis and apologised for what had occurred. The appellant also paid all expenses incurred by Mr Koutlakis consequent upon the injury he suffered. Mr Koutlakis had no memory of the incident. As a consequence of the incident, Mr Koutlakis required ongoing treatment for approximately six months. He suffered no permanent brain damage. He suffered some psychological effects from the incident.
The Magistrate was provided with a number of references. The appellant was 20 years’ old at the time of the offence. He has no previous convictions. He is a member of a close family unit. He is a talented sportsperson and a successful student studying science and human movement at the University of South Australia. He intends to undertake a Masters degree and wishes to pursue a career as a teacher. His mother is a school teacher and his father is an architect and builder.
The appellant was genuinely contrite and remorseful for what had occurred. This was demonstrated by him contacting Mr Koutlakis as soon as he heard that Mr Koutlakis had been injured. He paid an amount of $2250.70 as compensation to Mr Koutlakis. He borrowed that sum from his parents. He is required to repay it.
Character witnesses spoke extremely highly of the appellant. The references were from his former school teachers, the principal of St Michael’s College, the Chief Information Officer at Healthscope, friends of the family, and the senior coach of the Port Adelaide Football Club, for whom the appellant plays. There is no doubt that the appellant is a well-respected person within the community and that this incident was totally out of character.
The Magistrate’s sentencing remarks
The Magistrate referred to the circumstances of the offence. He characterised the offence as “a serious assault with serious consequences”. He accepted that the appellant was genuinely remorseful and contrite. He considered that personal deterrence was not significant. The Magistrate correctly considered that it was unlikely that the appellant would offend again in the future.
After referring to the circumstances of how the incident occurred, the Magistrate made the following observations about the appellant:
His personal circumstances have been explained. I repeat that I have read the references and they give me a good idea about the defendant. It is to his credit that as a young man he has not necessarily got caught up or allowed one aspect of his life to dominate. Whilst he is clearly a talented sportsman, he has worked hard at his studies as well and that is consistent with him currently undertaking his Bachelor of Science in Human Movement at the University of South Australia. He is balancing a genuine commitment to that study with a genuine commitment to his football career at the moment. He is working hard at all aspects of his life. He is in his third year and he is hopefully going to undertake a Masters, and his then chosen path is to become a teacher. At least one of his referees is a teacher, his mother is a teacher and he is hoping to go down that career path. That leads into a particular aspect of Counsel’s submission regarding a conviction. I will come back to say something about that in a moment. Reference was made to his hard working ethic, his balance, his well-roundedness and the fact that he lives a healthy lifestyle. I am told that he has largely cut down his social activities in recent times. He has been very much preoccupied with the consequences that will follow from today’s court appearance.
The Magistrate then referred to s 10 and s 11 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). He observed that a sentence of imprisonment may only be imposed if the court is of the opinion that any other sentence would be inappropriate having regard to the gravity or circumstances of the offending. He considered s 16 and s 39 of the Sentencing Act, which deal with the basis upon which a court might exercise its discretion not to record a conviction. He concluded that the appellant is a very worthwhile young member of the community. He accepted that the appellant acted in the heat of the moment. The offence was an overreaction to the conduct of Mr Koutlakis.
Counsel for the appellant contended that the basis of the plea, which was accepted, was that the appellant had used too much force in pushing Mr Koutlakis away.
The Magistrate then observed:
... It is a serious assault with serious consequences. I repeat, the impact on the victim is but one of a number of factors I need to take into account but it is a significant one. I am of the view that the issue of deterrence is a significant factor, perhaps not so much personal deterrence because I think the defendant himself reasonably quickly took on board the fact that it ought not to have occurred and has been very genuinely contrite and remorseful, but certainly the issue of general deterrence is an important factor. A message does need to be sent that particularly young men simply cannot afford to get physical and violent, even in the manner and in the circumstances in which this defendant did. The consequences can simply be too severe.
I am firstly of the view that the gravity of the offending is such that to proceed without recording a conviction would be totally inappropriate in all the circumstances.
I am of the view, notwithstanding all that has been said about the circumstances of the offending, that the only appropriate penalty is a period of imprisonment. I hasten to add that I am equally firmly of the view that there are very good reasons that exist upon which I can justify suspending that period of imprisonment. I intend to give the defendant significant credit for his cooperation with the process and I am actually going to give him slightly more than 30% discount and I am going to do that because of his expression very quickly of remorse. My starting point of 9 months will therefore be reduced to 6 months imprisonment.
Counsels’ submissions
Counsel for the appellant referred to s 11 of the Sentencing Act, which provides that a sentence of imprisonment may only be imposed if, in the opinion of the court, any other sentence would be inappropriate having regard to the gravity or circumstances of the offence, or if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in s 10.
Counsel submits that, in this case, a sentence of imprisonment could only be imposed upon the appellant pursuant to s 11(1)(a)(iv) or s 11(1)(b). Section 11 of the Sentencing Act provides:
11—Imprisonment not to be imposed except in certain circumstances
(1)     A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2)     This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
Counsel submits that the characterisation of this assault as a serious assault overstates the position. He submits it was an assault of a relatively minor nature, resulting in a serious consequence. The Magistrate described the assault as “a serious assault with serious consequences”. Counsel submits that the Magistrate fell into error in characterising the assault itself as a “serious assault”.
It is submitted that the Magistrate over-emphasised and overstated the effect of general deterrence in a case such as this. He submits that this was not a case of an unprovoked punch or a series of punches during the course of a melee.
Counsel further submits that, given the circumstances of the offending and the good character of the appellant and the effect that a conviction might have upon his future, the appeal should be allowed, the conviction set aside and the appellant be required to enter into a bond without conviction.
Counsel for the respondent submits that the Magistrate had regard to all relevant matters. It is submitted that this was a serious assault resulting in significant injuries. It is the type of case in which general deterrence is of paramount importance, and that the sentence was within the Magistrate’s discretion.
As to the question of whether a conviction should have been recorded, counsel submits that this was not an appropriate case as the offending was serious and to not impose a conviction would not give effect to the punitive and deterrent aspects of sentencing.
Consideration
The interrelationship between s 11 and s 10 of the Sentencing Act was discussed by King CJ in R v Manunta.[1] In referring to s 11(1)(a)(iv),[2] the Chief Justice stated:[3]
Apart from that, the Court in determining pursuant to par (d) whether any sentence other than imprisonment would be inappropriate having regard to the gravity or circumstances of the offence, is required, in my opinion, to give the usual weight to the traditional purposes of sentencing, namely the observation of a just proportion between the seriousness of the offending and the punishment, general deterrence, personal deterrence and rehabilitation.
[1] (1989) 54 SASR 17.
[2] The following quote refers to s 11(1)(a)(iv) as par (d).
[3] (1989) 54 SASR 17 at 24.
In R v Agius,[4] Gray J, with whom Wicks J agreed, discussed the question of what weight should be given to the consequence of a defendant’s action. Gray J observed:[5]
The provisions of the Sentencing Act reinforce the fundamental principle that a just punishment is to be imposed. All sentencing rules, requirements and guidelines are subservient to this fundamental principle. In my view, it is unjust to punish for unintended, unforeseen and not reasonably foreseeable consequences. Sentencing principles of general deterrence do not require such a result. To be relevant to general deterrence, the assumption would have to be made that conduct will be moderated by the risk of the not reasonably foreseeable consequence. To so reason involves an internal contradiction. No basis has been demonstrated for concluding that behaviour would be moderated by having regard to that which cannot be reasonably foreseen. I respectfully adopt the remarks of Napier CJ in Feldman v Samuels; the Victorian Full Court in Boyd and the remarks of Zeeman J in Inkson. I draw support from the reasoning of Brennan and McHugh JJ in Royall.
This is a most unusual and unfortunate case. Nevertheless the Court should not treat an unintended, unforeseen and not reasonably foreseeable consequence as relevant to the issue of sentence. Casual responsibility has not been established.
[Citations omitted.]
[4] (2000) 77 SASR 469.
[5] (2000) 77 SASR 469 at [102]-[103].
In the present case what on any objective view would be regarded as a relatively minor assault, the consequence was much more serious than would have been expected.
In considering whether the sentence was manifestly excessive, I am mindful that, in order to interfere with the exercise of the Magistrate’s discretion, if no specific error can be identified I must be satisfied that the sentence imposed is unreasonable or plainly unjust. I consider that, in the circumstances to which I have referred, a sentence of imprisonment for a first offender with the appellant’s good character, genuine contrition and for an assault which I regard as at the lower end of the scale of objective seriousness, this sentence was plainly unjust. On that ground, I would allow the appeal and set aside the sentence.
Re-sentencing
In considering the appropriate sentence for this offending, I have had regard to all the matters to which I have earlier referred in these reasons. In my view, this is a case in which it is appropriate to release the appellant on a bond in the sum of $100 to be of good behaviour for 12 months and, during that time, to come up for sentence if called upon.
The question then arises whether I should exercise my discretion and not record a conviction. Undoubtedly, offending of this nature would normally result in the recording of a conviction. However, there can be circumstances in which the discretion not to record a conviction should be exercised, even in a case of assault.
Section 39 of the Sentencing Act provides:
39—Discharge without sentence on defendant entering into bond
(1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(b)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)   However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The Court has a discretion, where good reason exists, to impose a bond without conviction. The discretion is a wide discretion. Factors to which the Court will have regard in considering whether to exercise the discretion include the nature of the offending, the character, antecedents, cultural background, age, health and medical condition of the offender and other extenuating circumstances. Other matters which the Court considers appropriate should be taken into account.[6]
[6] R v Yousef (2005) 155 A Crim R 134 at 142-3.
In considering whether to record a conviction, I have had regard to the factors referred to in earlier in these reasons.[7] I have also had regard to the long-term effect the recording of a conviction will have upon the appellant. All other relevant factors, other than the seriousness of the offence, support the exercise of the discretion not to record a conviction. The Court is reluctant to exercise its discretion when the offence involves a victim. Nevertheless, there are cases in which the discretion has been exercise in the case of serious offending. The discretion not to record a conviction has been exercised previously in cases of assault and assault occasioning actual bodily harm.[8]
[7] [8]-[11].
[8] McAvaney v Quigley (1992) 58 A Crim R 457; Hodgins v Police [2008] SASC 176; R v Stubberfield (2010) 106 SASR 191.

The effect a conviction may have on the future employment of a defendant has been regarded as an extenuating factor which would justify the exercise of the discretion. In MacGregor v Police,[9] the defendant was convicting of shoplifting. The effect of a conviction upon his future employment prospects was regarded as a significant factor to which the Court had regard in deciding not to record a conviction. In Buttigieg v Police,[10] the defendant pleaded guilty to larceny of $8000 worth of property from his former girlfriend’s parent’s house. Martin J set aside the order for a suspended prison sentence of five months and imposed a fine of $1000 and 50 hours of community service. He refrained from recording a conviction. He said:[11]
The impact of a conviction upon a young person hoping to improve his life by undertaking tertiary education with a view to entering the teaching profession must not be underestimated. This issue has caused me consideration anxiety but, on balance, I have decided that it is appropriate not to record convictions and to impose a penalty that will enable the appellant to get on with his rehabilitation and his future without the impediment of the convictions.
[9] (1996) 66 SASR 369.
[10] (1999) 74 SASR 229.
[11] (1999) 74 SASR 229 at [24].
In the present case, the Magistrate considered whether a bond pursuant to s 39 of the Sentencing Act was appropriate. In my view, in considering whether good reason existed not to impose a conviction, he failed to have sufficient regard to the personal circumstances of the appellant. In particular, the appellant wishes to pursue a teaching career. I have little doubt that he will be successful and be a future role model for his students. A conviction may well jeopardise his future career. In all the circumstances, this is one of the cases in which a person convicted of assault should not be bear the burden of a conviction.
The appeal is allowed.
I re-sentence the appellant. The sentence is that, without conviction, the appellant enter into a bond in the sum of $100 to be of good behaviour for 12 months and, during that time, to come up for sentence if so required.