Shoj v Barnsley
[2018] ACTSC 185
•11 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Shoj v Barnsley |
Citation: | [2018] ACTSC 185 |
Hearing Date: | 11 May 2018 |
DecisionDate: | 11 May 2018 |
Before: | Burns ACJ |
Decision: | See [11] |
Catchwords: | APPEAL – Magistrates Court appeal – procedural fairness – decision to refuse adjournment – appeal upheld –– re-sentence – aggravation – common assault – remorse – plea of guilty – general deterrence – whether to exercise of discretion under s 17 of Crimes (Sentencing) Act 2005 (ACT) |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 13, 17 |
Parties: | Cami Shoj (Appellant) Lysa Barnsley (Respondent) |
Representation: | Counsel Mr S Lawrence (Appellant) Ms S McMurray (Respondent) |
| Solicitors Hanna Legal (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 90 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 16 November 2017 Case Title: Barnsley v Shoj Court File Number: CC 4944 of 2017 |
BURNS J
As I have said, I am satisfied that the proceedings miscarried before the magistrate and that there was a complete failure to accord procedural fairness to the appellant. The decision to refuse the adjournment was so unreasonable in the circumstances as to bespeak error on the part of the magistrate, and the way in which the proceedings were conducted thereafter also indicates a failure by the magistrate to accord procedural fairness to the appellant.
For those reasons, the appeal is upheld. It then falls to me to re-sentence the appellant. I have had the benefit of the Statement of Facts which has been put before me and I have also had the benefit of viewing the closed-circuit television footage of the incident itself. There is much to be said for the prosecution’s submissions that there were aggravating circumstances which attended the condition of this offence itself. The animosity between the appellant and the complainant commenced somewhat earlier than the assault itself. The appellant swore an affidavit in these proceedings on 8 May 2018 in which he said, relevantly:
On the day I committed this offence, I arrived at my barber shop at about 1 pm. The victim and I had an argument about his conduct. During that argument, he used swear words and raised his voice. I asked the victim to take a lunch break but the victim did not want to go and was becoming aggressive. I called the shopping centre security because I was worried that the situation might escalate. I was very angry at the victim and I followed him to continue arguing with him. We argued for a short time and then I lost my temper and assaulted him. It was very wrong for me to do that I am very sorry for doing it. There was no excuse for what I did and I will never do it again.
It is fair to say, as the prosecution submitted, that the appellant followed the complainant after the complainant left the barbershop. He did so in order to continue arguing with him, not for the purpose of assaulting him. It is also fair to say that the offence is aggravated in that it occurred in a public place and also occurred in circumstances where the appellant was the employer of the complainant. I think there is some weight in the submission made by the prosecution that there is an aggravation by reason of the power imbalance between the appellant and the complainant in that this incident constituted a threat to the livelihood of the complainant.
I cannot, however, accept the proposition that this case falls at the upper end of seriousness of offences of common assault. Having seen the closed-circuit television footage, it is clear that there were a number of punches that were thrown by the appellant towards the complainant. The complainant was a much larger man than the appellant, although that is not a matter of great significance or mitigation, but it was an incident which I am satisfied was a loss of temper on the spur of the moment, and lasted for a matter of seconds before the parties were pulled apart.
Subsequently, I am satisfied that the appellant and the complainant met again on the same afternoon that this offence occurred; that is, on the afternoon of 23 December 2016, and the appellant bought a coffee for the complainant. He apologised to him and they shook hands. The appellant expected the complainant to return to work the following Tuesday; the Monday, in fact, being a day that the complainant was rostered off work. I am satisfied that in apologising to the complainant, the appellant demonstrated true remorse. I also note that the appellant demonstrated a degree of remorse by pleading guilty to this offence, although I accept he did not enter a plea of guilty at the earliest opportunity.
There was considerable material before the magistrate which is now before me to the effect that the behaviour of the appellant on this occasion was completely out of character. There is nothing in his criminal history, such as it is, to suggest that he is a person who is violent or aggressive, so that I completely reject the submission which was made before the magistrate, and also reiterated before me today, that this was an offence calling for consideration of specific deterrence as a sentencing objective. I accept, however, that general deterrence does play a part in relation to this matter.
In sentencing the appellant for this offence, I also take into account that as a consequence of the proceedings before the magistrate miscarrying in the way in which they did, the appellant has been required to pay increased costs with respect to this appeal. I do not suggest that in all cases where there is an appeal against sentence to this court that the court should take into account or indeed would take into account the fact that the appellant has had to expend further money by way of paying costs of lawyers for the appeal, but in the particular circumstances of this case, bearing in mind the way in which the proceedings were conducted before the magistrate, I am satisfied that it is an appropriate case to take that into account.
The submission has been made by Mr Lawrence on behalf of the appellant that I can deal with the present matter by way of a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Act). Under that provision, I may make one of two orders; either an order directing that a charge be dismissed if I am satisfied that it is not appropriate to impose any punishment other than nominal punishment on the offender, or alternatively a non-conviction order with a good behaviour order under s 13 of the Act. Subsection (3) of s 17 provides that in deciding whether to make a non-conviction order, I must consider the following matters: the offender’s character, antecedents, age, health, mental condition, the seriousness of the offence, and any extenuating circumstances in which the offence was committed.
Under subsection (4) of s 17, I am also able to consider anything else that I consider relevant. I am satisfied that prior to this offence, the appellant has been a person of good character. He has no antecedents which are relevant in relation to the present sentencing exercise. He is now 57 years of age, and as I have said, has no previous convictions for any sort of offence involving an amount of violence. I accept that this offence is not trivial but nor to my mind is it so serious that it rules out the possibility of the exercise of my discretion under s 17.
On balance, I propose to deal with the matter by way of a non-conviction order with a good behaviour order under s 13. As I have said, I will uphold the appeal.
Orders and re-sentence
The conviction which was imposed by the magistrate will be set aside, and in substitution, without recording a conviction, there will be a good behaviour order for a period of 12 months with no conditions other than the core conditions.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns. Associate: Date: 23 August 2018 |
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