Singh v Police - [2022] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SINGH v POLICE
[2022] SASC 67
Judgment of the Honourable Justice Blue
8 July 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
The appellant was convicted by a Magistrate of aggravated assault and placed on a bond to be of good behaviour for 18 months and come up for sentence if called upon pursuant to section 97 of the Sentencing Act 2017 (SA)(the Act).
The appellant appeals against the recording of a conviction on the ground that the Magistrate erred in recording a conviction.
Held:
1    Observations on the provisions in the Act empowering a court not to record a conviction and the different criteria applying to those different provisions (at [24-27]).
2    The Magistrate did not make the process errors asserted by the appellant and the exercise of the discretion was not vitiated (at [29, 40-42]).
3    Appeal dismissed (at [47]).
Sentencing Act 2017 (SA) s 11, s 23, s 24 and s 97, referred to.
Kroni v The Queen [2021] SASCFC 15; R v Fati [2021] SASCFC 99; R v Lutze (2014) 121 SASR; R v Nemer (2003) 87 SASR 168, considered.

SINGH v POLICE
[2022] SASC 67

BLUE J: The appellant Gurpreet Singh was convicted by a Magistrate of aggravated assault[1] and placed on a bond to be of good behaviour for 18 months and come up for sentence if called upon pursuant to section 97 of the Sentencing Act 2017 (SA) (the Sentencing Act).
[1] Criminal Law Consolidation Act1935 section 20(3).
The appellant appeals against the recording of the conviction on the ground that the Magistrate erred in recording a conviction.
Background
In May 2021 the appellant’s wife, the complainant, was working as a cleaner at a shopping centre in addition to undertaking a Master of Business Administration in Tourism.
On 19 May 2021 at about 6.00 am, the appellant’s wife arrived at the shopping centre and started work. She told her employer that she no longer wanted to work as a cleaner there. The employer telephoned the appellant and told him that his wife no longer wanted to work at the shopping centre. The appellant attempted to telephone his wife and then drove to the shopping centre, arriving at about 7.30 am.
The appellant approached his wife, grabbed her by the jaw, slapped her once to the face and dragged her into the cleaning office at the shopping centre. The Magistrate said that his actions were the result of his anger at his wife and were taken for the purpose of controlling her.
The appellant’s actions were witnessed by persons present at the shopping centre and recorded by the centre’s CCTV cameras. The police attended and interviewed the appellant, who admitted to assaulting his wife. He said that he behaved in this way out of love for the complainant.
The appellant was arrested by the police and released on police bail. It was a condition of the bail agreement that the appellant not approach or communicate with his wife. In addition, an intervention order was made effectively containing the same condition.
The appellant commenced and ultimately completed a domestic violence program.
On 29 July 2021 the appellant first appeared in the Magistrates Court. The condition that he not approach or communicate with his wife was removed from the terms of his bail and the intervention order.
On 2 December 2021 the Magistrate heard submissions on penalty and delivered ex tempore remarks on penalty.
The appellant was born in India in 1995. He married his wife in India in August 2018. In February 2019 he and his wife travelled to Australia, she on a student visa and he on a bridging visa. They initially lived in Melbourne and then moved to Adelaide because her college was located in Adelaide. She also worked part time. The appellant’s wife completed a Master of Business Administration in Tourism in late 2021.
The appellant works primarily as a driver. A favourable reference was provided to the Magistrate by a courier company that employed him from November 2020 onwards. The employer described him as hardworking, dedicated, honest, respectful and sincere.
On 29 July 2021, when his bail conditions were varied, the appellant and his wife resumed cohabitation. They wish to continue living in Australia, make Adelaide their home and in due course have children.
Sentencing submissions
The police prosecutor informed the Magistrate that the appellant had pleaded guilty at the earliest opportunity and was eligible for the maximum sentencing discount (up to 40 per cent). The police prosecutor said that the prosecution was of the view that a bond to be of good behaviour was appropriate in the circumstances and that the prosecution was not submitting that a conviction ought to be recorded, leaving that issue to the Magistrate.
Counsel for the appellant handed to the Magistrate a document entitled “Mitigation Plea on behalf of GURPREET SINGH”. It set out the appellant’s personal circumstances as summarised above and attached the reference from his employer. It stated that he had no excuse for his behaviour, regretted it and was remorseful. It referred to his having completed the domestic violence program and said that he had made it clear that there would be no repeat of his behaviour. It invited the Magistrate to accept that the offending ought to be regarded as being at the lower end of the scale of seriousness for assault. Additionally, it submitted that there was good reason not to record a conviction having regard to the appellant’s regret and remorse, early guilty plea, acknowledgement of his behaviour and likelihood that he would not commit such an offence again.
Counsel for the appellant informed the Magistrate that the appellant was on a dependant’s visa [it was in fact a bridging visa] and submitted that it was inevitable that the Immigration Department would write to him giving him notice of intention to cancel his visa, inviting him to make submissions why his visa should not be cancelled. He submitted that, were a conviction to be recorded, the Immigration Department would “view matters more seriously and it would be more difficult for the [appellant] to persuade them not to cancel his visa”.
The Magistrate enquired as to the plans of the appellant and his wife. Defence counsel sought leave to take instructions from the appellant’s wife outside the courtroom and informed the Magistrate that she had told him that she wanted to maintain her marriage, continue to live in Australia, make Adelaide their home and in due course have children.
Counsel for the appellant submitted that, if his visa were cancelled, his wife would be placed in the difficult position of having to choose between being able to continue to live in Australia and having to leave Australia to maintain her marriage to the appellant.
The Magistrate enquired of the police prosecutor whether she had any response to defence counsel’s submissions. She reiterated that the prosecution was of the view that a bond to be of good behaviour was appropriate in the circumstances and the prosecution was not submitting that a conviction ought to be recorded, leaving that issue to the Magistrate.
Sentencing remarks
The Magistrate delivered ex tempore remarks on sentence at the conclusion of the sentencing submissions.
The Magistrate summarised the facts of the offending and the appellant’s personal circumstances.
In relation to the question whether a conviction should be recorded, the Magistrate said:
The consequences of this offence for you are serious because it may have an impact on your visa status in Australia. What will happen is uncertain but certainly it is a matter that will be addressed by the Department of Immigration Border Protection.
…
I want to turn to the question of whether or not a conviction should be recorded. The court may refrain from recording a conviction if good reasons exist to do so. Clearly your lack of criminal antecedents is a relevant factor and also whether I am satisfied that you will not repeat this offending and your personal circumstances. It is certainly not trivial offending. The exercise of this discretion is an exception to the usual and common place practice of recording convictions and the discretion is to be used only where circumstances of the case fully merit such an approach.
The question of whether good reasons exist for recording a conviction or not involves an evaluation by me, by weighing up the benefits to the individual of proceeding without a conviction against a public interest in a conviction being recorded.
The benefit to you of not recording a conviction is plain enough. You are a young man who is in the middle of his career and clearly a conviction may impact the type of work you do in the future. As I said it also has an impact on your visa status. An individual against whom no conviction is recorded thereby secures a reputational and practical benefit. On the other hand there is the public interest in proceeding for conviction being recorded. The recording of a conviction serves as an aspect of punishment and signifies to others and the public at large that this type of offending conduct is serious and will not be tolerated. I have considered the offence for which you have been charged and I consider it to be serious. There needs to be a level of general deterrence.
In the circumstances I consider it appropriate to record a conviction. You have pleaded at the first available opportunity and you have completed the abuse prevention program and that has an impact on the penalty that I impose.
In the circumstances I think it is appropriate that you be placed on a bond to be of good behaviour for 18 months. The bond will be in the sum of $500 and if you breach the bond you will come back before this Court for resentencing.
The legislative regime
There are three sections of the Sentencing Act that empower a court not to record a conviction. Sections 23, 24 and 97(1) provide:
23—Discharge without penalty
(1)If a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose a penalty, the court may—
(a)without recording a conviction—dismiss the charge; or
(b)on recording a conviction—discharge the defendant without penalty.
(2)If a court finds a person guilty of an offence and—
(a)the defendant has spent time in custody in respect of the offence; and
(b)     the court is satisfied there is good reason not to impose any further penalty on the defendant,
the court may—
(c)without recording a conviction—dismiss the charge; or
(d)on recording a conviction—discharge the defendant without further penalty.
(3)A court may exercise the powers conferred by this section despite any minimum penalty fixed by an Act or statutory instrument.
24—Imposition of penalty without conviction
If a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both, and the court is of the opinion—
(a)that the defendant is unlikely to commit such an offence again; and
(b)that, having regard to—
(i)    the character, antecedents, age, or physical or mental condition, of the defendant; or
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
97—Discharge of other defendants on entering into good behaviour bond
(1)If 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 any other penalty, on condition that the defendant enter into a bond—
(a)to be of good behaviour; and
(b)to comply with the other conditions (if any) included in the bond; and
(c)     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.
These sections effectively contain five provisions, each operating in different circumstances, that empower a court not to record a conviction:
1If the court finds that the offence is so trifling that it is inappropriate to impose a penalty, the court then has a discretion to dismiss the charge without recording a conviction (subsection 23(1)) (dismissal on trifling ground).
2If the court finds that:
(a)    the defendant has spent time in custody in respect of the offence; and
(b)    good reason exists for not recording a conviction (having regard to the defendant’s character, antecedents, age, physical or mental condition, the offence being trifling or any other extenuating circumstances),
the court then has a discretion to dismiss the charge without recording a conviction (subsection 23(2)) (dismissal after time in custody).
3If the court:
(a)    proposes to impose a fine, a sentence of community service or both; and
(b)    finds there is good reason not to impose any further penalty,
the court then has a discretion[2] not to record a conviction (section 24) (fine or community service without conviction).
4If the court finds that:
(a)    good reason exists to discharge the defendant without imposing any other penalty on condition that the defendant enter into a bond to be of good behaviour; and
(b)    good reason exists for not recording a conviction,
the court then has a discretion[3] to discharge the defendant without further penalty upon the defendant entering into such a bond without recording a conviction (subsection 97(1)) (discharge on good behaviour bond).
5If the court finds that:
(a)    good reason exists to discharge the defendant on condition that the defendant enter into a bond to be of good behaviour and other conditions and appear for sentence on failing to comply with a condition of the bond; and
(b)    good reason exists for not recording a conviction,
the court then has a discretion[4] to discharge the defendant upon the defendant entering into such a bond without recording a conviction (subsection 97(1)) (conditional discharge on good behaviour bond)).
[2]     If the court has already concluded that then is good reason for not recording a conviction, it is difficult to identify in what circumstances the court would decide to record a conviction but it is not necessary for the purpose of this appeal to further consider that question.
[3]     If the court has already concluded that good reason exists for not recording a conviction, it is difficult to identify in what circumstances the court would decide to record a conviction but it is not necessary for the purpose of this appeal to further consider that question.
[4]     If the court has already concluded that good reason exists for not recording a conviction, it is difficult to identify in what circumstances the Court would decide to record a conviction but it is not necessary for the purpose of this appeal to further consider that question.
There are different pre-requisites for the exercise by the court of the power not to record a conviction under each of the five provisions. In very broad terms, the different provisions involve different substantive penalties:
·the first and second provisions involve dismissal of the charge (because it is trifling or because the defendant has already spent time in custody);
·the third provision involves imposition of a fine, community service or both when there is good reason not to impose any further penalty; and
·the fourth and fifth provisions involve the defendant entering into a bond to be of good behaviour when there is good reason not to impose any other penalty. Under the fourth provision, if the defendant breaches the condition of the bond, the consequence is potential forfeiture of the recognisance and any surety. Under the fifth provision, if the defendant breaches a condition of the bond, the consequence is not only potential forfeiture but also the defendant being sentenced for the offence.
Under each of the provisions, it is either an explicit or implicit requirement that there is good reason not to record a conviction.
In the Magistrate’s remarks, the Magistrate referred to some of the prerequisites for exercise of the power not to record a conviction under section 24 before turning to the question whether there was good reason not to record a conviction under section 97. Ultimately this appeal turns on the application of section 97. However, it is important that sentencing judicial officers clearly distinguish between the different provisions that empower a court not to record a conviction as explained above.
Exercise of discretion by the Magistrate
The appellant contends that the Magistrate committed several process errors in determining to record a conviction. He makes no complaint concerning the decision of the Magistrate to discharge him without further penalty upon entering into a bond to be of good behaviour and come up for sentence if he breaches the good behaviour bond.
The appellant’s first contention is that the Magistrate erred in not referring to the ambivalence of the prosecution as to recording a conviction. I reject that contention. The Magistrate delivered ex tempore remarks on sentence immediately upon the conclusion of sentencing submissions. The police prosecutor’s submission that the prosecution did not wish to make submissions on the issue of whether a conviction ought to be recorded, but was leaving that issue to the Magistrate, was fresh in the mind of the Magistrate at the time of delivery. There was no need for the Magistrate to refer to that submission in the sentencing remarks. The Magistrate was not bound to exercise his discretion not to record a conviction merely because the Police did not submit that the recording of a conviction was essential.[5]
[5] As to the general principle that a court is not bound by submissions and concessions by the prosecution in sentencing, see R v Nemer [2003] SASC 375, (2003) 87 SASR 168 at [40] per Doyle CJ (with whom Prior J and Vanstone J relevantly agreed).
The appellant’s second contention is that the Magistrate erred in not referring to the attitude of the complainant, being the appellant’s wife, the risk that a conviction would pose to her marriage and her desire to stay in Australia with her husband and being placed in a position of having to choose between remaining in Australia without him or returning to India with him. He refers in particular to section 11(1)(b) of the Sentencing Act which provides that, to the extent known and relevant, a court must take into account “the personal circumstances and vulnerability of any victim of the offence whether because of the victim’s… relationship to the defendant… or otherwise”.
Defence counsel made submissions to the Magistrate concerning the effect of a conviction on the appellant. On appeal, the appellant does not rely on the effect of a conviction on him in relation to cancellation, non-renewal or non-expansion of his visa. Rather, he relies on the effect of his conviction on the complainant, his wife.
No evidence was adduced concerning the level of the risk that the appellant’s visa will be cancelled or not renewed or not expanded if a conviction is recorded. No evidence was adduced concerning the differential (if any) between such a risk if a conviction is recorded compared to such risk if a conviction is not recorded. My understanding is that the appellant concedes that, given that these risks are speculative, he cannot rely on the objective risk of cancellation, non-renewal or non-expansion as having a negative impact on the complainant, but rather relies on the subjective uncertainty and anxiety that would be caused to the complainant, his wife, in respect of the future if a conviction is recorded.

I first address the objective risk of cancellation, non-renewal or non-expansion of the appellant’s visa in terms of its objective impact on the complainant before turning to the question of subjective anxiety.
Section 11(1)(b) of the Sentencing Act provides that:
11—Individual sentencing factors
(1)In determining a sentence for an offence, a court must take into account such of the factors as are known to the court that relate to the following matters as may be relevant:
…
(b) the personal circumstances and vulnerability of any victim of the offence whether because of the victim's age, occupation, relationship to the defendant, disability or otherwise;
In Kroni v The Queen[6] the Full Court held that, as a matter of principle, the risk of deportation of a defendant is potentially relevant to the exercise of the sentencing discretion.[7] However, the Court held that:
[T]he sentencing court cannot be invited to speculate. Absent evidence or a concession, the mere risk of deportation, even if it is a real risk, cannot be taken into account …[8]
[6] [2021] SASCFC 15.
[7] At [227] per Livesey CJ (with whom Doyle J agreed).
[8] At [227] per Livesey CJ (with whom Doyle J agreed).
In R v Fati[9] the Court of Appeal elaborated upon the inability of a sentencing court to speculate, saying:
In appropriate cases, the risk of deportation may nonetheless be relevant and taken into account as part of a defendant’s personal circumstances. However, in some cases, that risk will be speculative and therefore irrelevant…
Whilst the loss of the right to live in Australia is usually, and rightly, regarded as a form of general hardship, whether that is actually so may depend on the circumstances of the particular case. Absent evidence or a concession that deportation will be associated with particular hardship, that is not a matter about which a sentencing court can usually take judicial notice or speculate. It is not a matter “known to the court” as the Act requires.[10]
[9] [2021] SASCFC 99.
[10] At [74]-[75] per Livesey P, Doyle and David JJA.
In the present case, no evidence was adduced in relation to the appellant’s visa. The Magistrate was informed that he held a dependant’s visa (it was in fact a bridging visa). No evidence was adduced about when the appellant’s visa was due to expire, whether there was any prospect (and if so what prospect) that it would be reviewed, or whether there was any prospect that it would be expanded in the sense that the appellant would be granted a permanent visa to live in Australia. No evidence was adduced about the level of risk that a conviction for assault would have upon the renewal or expansion (or cancellation) of the appellant’s visa. No evidence was adduced about the level of risk that a finding of guilt without recording a conviction for assault would have upon renewal or expansion (or cancellation) of the appellant’s visa.
The Magistrate had no way of knowing, and on appeal I have no way of knowing, whether the recording or not recording of a conviction would have any effect on the appellant’s visa or the prospects of renewal or expansion of his visa. That question, and consequently the question of the effect of cancellation, non-renewal or non-expansion of the appellant’s visa upon the complainant, is therefore entirely speculative. In accordance with the authorities referred to above, these issues could therefore not be taken into account by the Magistrate in sentencing.
Turning to the subjective effect of anxiety upon the complainant, without a foundation of some evidence concerning the prospects of cancellation, non-renewal or non-expansion of the appellant’s visa with or without the recording of a conviction, there is no foundation for a finding that recording of a conviction would cause anxiety to be suffered by the complainant. No evidence was adduced before the Magistrate that the complainant would suffer anxiety, or the level of such anxiety, associated with uncertainty in relation to the prospects of the cancellation, non-renewal or non-expansion of the appellant’s visa. In particular, no evidence was adduced that anxiety suffered by the complainant in this respect would be greater if no conviction were recorded than if a conviction were recorded and, if so, the level of incremental anxiety that would be so suffered. In the absence of such evidence, hardship caused to the complainant by way of anxiety about the appellant’s visa resulting from a conviction is purely speculative.
In the circumstances, it was not necessary for the Magistrate to refer explicitly to any hardship to the complainant in his sentencing remarks.
The appellant contends that the Magistrate failed to have sufficient regard to the appellant’s employment position. The Magistrate did have regard to this matter, as evidenced by the Magistrate’s remark that “clearly a conviction may impact the type of work you do in the future”. Although it may be a process error to fail to have regard to a relevant circumstance, it is not a process error vitiating the exercise of the sentencing discretion that insufficient (or too much) weight was given to a relevant circumstance.[11]
[11] R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144 at [47] per Vanstone and Parker JJ.
The appellant contends that the Magistrate gave too much weight to personal and general deterrence. Again, giving too much weight to a relevant circumstance does not amount to a process error vitiating the exercise of the sentencing discretion.
The appellant does not contend that there was an outcome error in that it was not open to the Magistrate to exercise the discretion not to decline to record a conviction. In any event, it cannot be said that this was not open to the Magistrate. Although there were several mitigating features and the assault was not the most serious of assaults for which the court is called upon to sentence, it was nevertheless deliberately undertaken by the appellant in public and in a manner calculated to cause the complainant shame and embarrassment and to control her.
The appellant tendered on appeal an affidavit by his wife affirmed shortly before the hearing of the appeal. She elaborated to a small degree on the submissions made by defence counsel to the Magistrate. She concluded by saying “I would like the charges against my husband to be removed to avoid having issues with the Immigration”.
This does not amount to fresh evidence capable of being received on appeal and resulting in the allowing of an appeal against sentence in circumstances in which the Magistrate made no appealable error. In any event, it does not address the matters that are purely speculative referred to above.
The ground of appeal is not established.
Conclusion
I dismiss the appeal. I will hear the parties concerning any other orders sought.