SINGH v Police - [2016] SASC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SINGH v POLICE
[2016] SASC 97
Judgment of The Honourable Justice Doyle
30 June 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
The appellant pleaded guilty to an aggravated offence of assault causing harm. The Magistrate recorded a conviction and imposed a three month term of imprisonment, which was suspended upon the appellant entering into a bond to be of good behaviour for one year.
The appellant appealed against his sentence on the grounds that the Magistrate erred in his characterisation of the victim’s provocative behaviour, and in finding that there was a pre-existing intention to threaten and intimidate; that the Magistrate erred in imposing a sentence of imprisonment; and that the sentence imposed was otherwise manifestly excessive.
Held (per Doyle J), dismissing the appeal:
1. No error in the Magistrate’s approach or exercise of discretion has been established.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 16, 2 s 39, referred to.
House v The King (1936) 55 CLR 499; Tazebe v Police [2013] SASC 194, considered.

SINGH v POLICE
[2016] SASC 97
Magistrates Appeal.
DOYLE J:

The appellant was convicted, on his plea of guilty, of the offence of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The offence was aggravated because the assault was committed in company with another person.
In sentencing the appellant, the Magistrate rejected the appellant’s application to deal with the matter without recording a conviction. The Magistrate held that a term of imprisonment was necessary and appropriate. The Magistrate started with a notional head sentence of five months imprisonment, which his Honour reduced by 40 per cent to three months on account of the appellant’s guilty plea. Having regard to matters personal to the appellant, the Magistrate suspended the term of imprisonment upon him entering into a good behaviour bond for a period of one year.
The appellant appeals against his sentence on three grounds:
1.   The Magistrate erred in his characterisation of the victim’s provocative behaviour, and in finding that there was a pre-existing intention to threaten and intimidate.
2.   The Magistrate erred in imposing a sentence of imprisonment.
3.   The sentence imposed was otherwise manifestly excessive, including by reason of the recording of a conviction.
The Magistrate’s sentencing remarks
The Magistrate described the circumstances of the offending in the following terms:
At about 6 p.m. on 21 February 2015 you telephoned your victim to tell him that your father wanted back an amount of $500 which he had lent him and you arranged to meet your victim on the corner of Sir Edwin Smith Avenue and King William Street in Adelaide. You went there with another man. You had another reason to be there which you had not mentioned to your victim. You wanted to get his mobile phone, to recover photographs which he had taken of messages on our father’s computer. Your father is a medical practitioner of very high standing in the Indian community and is well known for assisting young Indian people who come to Australia. He had helped out your victim. This included allowing him to use his computer, as well as lending him money. Your victim saw private messages on the computer between your father and a woman he believed was your father’s cousin. He believed that there was a relationship between them, which he regarded as inappropriate for cultural reasons because he believed they were related. He took photographs of the messages and then contacted the woman who told him, in effect, to mind his own business. This got back to your father. Your attendance to meet the victim on this day was at least as much, if not more, about reclaiming the photographs and rescuing your father’s honour than the collection of the debt. I have to sentence you on the basis that when you went there with this other man you were anticipating that there could be resistance or difficulty and you intended at the very least to be able to intimidate your victim.
Your victim’s statement says that after he gave you $500 in cash, you said you wanted to talk to him and you stated that he had your father’s personal messages on his phone and you wanted to take this phone. He says he said no and you said ‘You’ve got two ways, you give me your phone or there’s going to be violence’. As it happened, you recorded the exchange and, although some of what was said cannot be determined, it is certainly clear that there was discussion about the phone which became increasingly more heated and ultimately you were abusive at the defendant. You did say to the defendant that there were two ways but you did not specifically mention violence. However, I sentence you on the basis that you did intend to convey to your victim that if he did not hand over the phone violence might be the consequence. He understood perfectly what you meant and no doubt that is why, when attempting to recall the detail, he stated that you specifically threatened violence.
Then you launched an attack upon your victim. You hit him a number of times in the face and the head with your fists. The other man joined in also. Your victim was yelling ‘Stop, you are doing this wrong’, and when he fell to the ground, you and the other man started kicking him all over his body. He thought this went on for about five minutes. He said he would give you the phone. He got up and he started walking towards his car. Then he ran away with you and the other man chasing him, running into traffic but getting no assistance. You and the other man let him go. It turned out then that your victim’s phone was with his friend who was nearby and the other man took the phone from him. However, you had no part in that and I make clear that you are not being punished for the taking of the phone.
Later in his remarks on penalty, the Magistrate elaborated upon the issue of the appellant’s intention, and the provocation he experienced. The Magistrate said:
You have no history of this sort of behaviour. Your counsel has described it as an unpremeditated momentary loss of control in circumstances where that sort of conflict was not intended. However, as I have already mentioned, it is plain in all the circumstances that you went intending to get the phone so you could delete its content and that the presence of the two of you was intended to have a coercive capacity, to ensure that you would succeed in this objective. Your overriding intention was to assist your father and prevent your victim from interfering with, upsetting or causing embarrassment to him. These are the circumstances which explain your preparedness to resort to implicit threats and then actual violence. I accept that you were responding to behaviour of the [victim] which was provocative, in the sense that it was always likely to lead to grievance, particularly on the part of your father. It was uncharacteristic behaviour for you, it was quite brief and it did not involve the use of weapons. None of that changes the fact that it was a serious episode of violence which was sustained, albeit for a brief period of time and carried with it a significant risk of serious injury to your victim. It is fortunate indeed that he was not more seriously harmed. I accept that you are embarrassed and apologetic, that you accept the importance of controlling your behaviour and that in the past you have done so and that in the future you will avoid any incident of this kind.
The victim’s injuries were significant. He suffered bruising under both eyes and around his right cheek, a laceration of about a centimetre on his left upper cheek and a one centimetre laceration on the left rear side of his skull. A scan of his facial bones revealed a mildly depressed fracture of the anterior wall of his right maxillary sinus. His left upper cheek laceration received three sutures and was dressed, and the victim was prescribed paracetamol for his pain and a course of antibiotics.
The victim declined the opportunity to provide a victim impact statement, but the Magistrate was prepared to assume that he suffered significant pain and discomfort, and that it is unlikely such an assault would have no lasting psychological effects.
Turning to the matters personal to the appellant, the Magistrate noted that he had had regard to the written submissions provided on behalf of the appellant. The Magistrate referred to a number of specific matters. He noted that the appellant was 24 years of age and had no relevant history of offending. He described the appellant’s family circumstances, namely that he was born in India but moved to Australia with his parents when he was three years of age. He has two younger brothers. His father has risen out of poverty to become a greatly admired medical practitioner who, in addition to his medical work, has made a significant and ongoing contribution to the welfare of others, particularly in the Indian community in Australia. The Magistrate referred to the appellant as very close to his father, and wishing to emulate his career path and commitment to the community.
The appellant received a private school education, then spent time in officer training at Duntroon. He then commenced a nursing degree, later transferring to science, and in particular molecular biology, all with the view to transferring to medicine. He intended soon to undertake the graduate admission test in the hope of being admitted to study for a medical degree. The appellant had until recently maintained part-time employment during his studies.
The Magistrate accepted that the appellant was remorseful, as reflected by his early guilty plea, his offer to pay the victim’s medical expenses and his wish to apologise to him. He noted that the appellant had reflected carefully upon his behaviour and had discussed it with his father, who disapproved of it. He was willing to undergo any counselling or therapy as ordered by the Court, but had not initiated this himself because he did not think it necessary to ensure that such conduct was not repeated.
As to the subject offending being out of character, the Magistrate had regard to the references provided on the appellant’s behalf. The Magistrate was satisfied that the appellant’s prospects of rehabilitation were high, and that further offending was improbable.
However, his Honour returned to the seriousness of the offending, observing:
… this was a significant offence of violence, committed in daylight hours, in public, involving a sustained series of blows to your victim’s head and kicks to the body. The fact that you would be prepared in any circumstances to take the law into your own hands and commit such a dangerous and sustained offence is a matter of great concern. By this offence, you exposed your victim to a real risk of much more serious injury. You are obviously very proud of your father and justifiably so. You wished to deal with any ongoing risk of damage to his reputation. These are factors which explain your decision to engage in this uncharacteristic conduct.
This is an offence which I place well above the bottom of the range of seriousness for such offending. By taking the law into your own hands, attending with another person, ready at least to threaten and then to go ahead and attack your victim so violently, you have committed an offence which must sit further towards the middle of the range of seriousness for this category of offending.
The Magistrate referred to s 10 of the Criminal Law (Sentencing) Act 1988 (SA). Having already described the circumstances of the offence, the appellant’s circumstances and the effect on the victim, the Magistrate observed that personal deterrence was of less importance in this case given his conclusion that further offending was improbable. His Honour noted, however, that general deterrence was a significant consideration, and that the sentence should discourage others from taking the law into their own hands and committing acts of violence to that end. Ultimately, while accepting that he could not impose imprisonment unless any other sentence would be inappropriate having regard to the gravity or circumstances of the offence, his Honour nevertheless considered that the seriousness of the offence and the need for general deterrence outweighed the matters personal to the appellant that had been advanced in his favour. His Honour concluded that imprisonment was the only appropriate penalty.
Finally, the Magistrate explained that in reaching this conclusion, he had considered and concluded that he should reject the request that he utilise s 16 or s 39 of the Criminal Law (Sentencing) Act so as to deal with the appellant without recording a conviction. The Magistrate explained:
In reaching that conclusion I have taken into account all the matters to which I have been asked to have regard, in concluding as I was asked to do under section 16 or section 39 of the Criminal Law (Sentencing) Act that the court should deal with you without recording a conviction, I have decided that I must reject this application. In reaching that conclusion I have taken into account your prior good character, your remorse, your absence of antecedents and the likelihood of your successful rehabilitation. I am mindful of the possible adverse impact a conviction might have upon your future prospects both generally and of becoming a doctor. I give considerable weight to that. I bear in mind that a conviction records the disapproval of the community for any criminal offence. It specifically operates as a sanction. I also bear in mind the public interest in a conviction being recorded. I conclude that this particular offence is one which ought to be brought to the attention of those who might consider in the future whether you should be permitted to practise as a medical practitioner. I consider it to be simply too serous an offence to justify recording no conviction, with the consequence that those considering whether to grant you that opportunity may be prevented from knowing about it or perceive that the court viewed the offence less seriously than in my view is justified. In the end, in my view, the seriousness of the offending and the need for general deterrence outweigh all of those considerations personal to you and require that a conviction be recorded.
The Magistrate then announced the terms of the sentence of imprisonment he had determined to impose, which are set out earlier in these reasons.
Ground 1: provocation and intention
Ground 1 challenges the Magistrate’s findings of fact, or at least characterisation of the facts, in relation to the provocation and intention of the appellant. The respondent countered this challenge with a submission that to the extent there was any merit in the matters raised, they were merely complaints as to the adequacy of the weight attached to these matters and hence not errors within the meaning of House v The King.[1]
[1] House v The King (1936) 55 CLR 499 at 504-505.
In addressing this ground, the appellant’s counsel was careful to ensure that he not challenge the primary findings of fact by the Magistrate, there not having been any dispute about those facts before the Magistrate. Rather, his challenge was solely to the inferences or conclusions drawn from those facts, or their characterisation.
In relation to provocation, the appellant contended that the Magistrate erred in not appreciating the true nature or characterisation of the provocative conduct of the victim. The appellant emphasised the invasion of privacy and breach of trust involved in the victim’s behaviour. He also challenged the Magistrate’s reference to the conduct being provocative “particularly on the part of your father”. The appellant’s submission was that this was to overlook that, for some people, an insult to those close or dear to them is more provocative than an insult directed to them personally. The appellant contended that his close relationship with his father, and the esteem in which he held his father, meant that the provocation in this case was if anything exacerbated by it being directed to his father rather than him personally.
While the precise nature of the provocative conduct was relevant in determining the extent to which it operated to moderate the moral and criminal culpability of the offending, I consider that the appellant has fallen short of establishing relevant error on the part of the Magistrate.
As is apparent from the passages of the Magistrate’s remarks extracted above, his Honour correctly understood and took account of the nature and circumstances of the victim’s provocative conduct. While not using the language of breach of trust or invasion of privacy, the Magistrate referred to the victim as someone who had been helped by the appellant’s father, but had used the opportunity to take copies of “private” messages. The Magistrate understood and took account of this aspect of the victim’s conduct.
Further, the Magistrate did not overlook the importance to the appellant of the conduct in question being directed to his father. The Magistrate described the appellant’s conduct as involving “rescuing [his] father’s honour”. The Magistrate also made detailed reference not only to the father’s achievements, but also to the fact that the appellant was very close to his father and that he wished to emulate his father’s career path and commitment to the community. The Magistrate later observed:
You are obviously very proud of your father and justifiably so. You wished to deal with any ongoing risk or damage to his reputation. These are factors which explain your decision to engage in this uncharacteristic conduct.
In relation to the appellant’s intention, the appellant challenges the finding that he had a pre-existing intention to threaten and intimidate. The appellant contends that the evidence did not establish this, and in particular did not exclude the characterisation of what occurred as a verbal argument, associated threats and a consequential spontaneous eruption of violence.
In considering this submission it is first necessary to be precise about what the Magistrate found as to the appellant’s intention or pre-meditation. The Magistrate addressed this in a few places in the passages from his remarks extracted above. His Honour initially referred to the appellant as “anticipating that there could be resistance or difficulty”, and said that the appellant “intended at the very least to be able to intimidate [his] victim”. The Magistrate later said that he sentenced the appellant on the basis that the appellant did intend to convey to his victim that if he did not hand over the phone, violence might be the consequence. Finally, the Magistrate also described the appellant as having gone to the meeting with the victim both intending to get the phone and intending the presence of two of them (the appellant and the man with him) to have a coercive capacity to ensure that he would succeed in his objective.
In my view, these findings were open and appropriate on the evidence. While the presence with the appellant of another male was on its own equivocal, this needed to be considered in light of the evidence both as to that male’s subsequent conduct in joining in the assault of the victim, and the evidence as to the appellant’s conduct in threatening violence, and then resorting to violence, when the victim did not comply with his demand to hand over the telephone.

It is of some relevance that the appellant did not raise the topic of the messages and phone when he spoke on the telephone to the victim about setting up a time to meet and hand over the money. The appellant waited until they met to raise the topic with the victim.
Further, the evidence was that following the return of the $500, the appellant turned straight to the topic of the messages and phone. After his first request for the phone to be handed over was declined, the appellant said “you’ve got two ways, you give me your phone or there’s going to be violence”. While some argument and mutual abuse apparently ensued before the violence commenced, in my view it was appropriate for the Magistrate to draw the inferences he did. The promptness with which the appellant moved to threaten and then implement violence to achieve his objective of securing return of the phone made it plain that he had anticipated that his request for return of the phone might be declined; that he had anticipated that a threat of violence, if not violence itself, may be necessary to achieve his objective; and that he had determined that he was prepared to go to these lengths if that was what was necessary to secure the phone and deletion of the messages.
The presence of the male accompanying the appellant supports this inference. Further, there is nothing in the evidence as to what occurred during the meeting between the appellant and the victim to suggest that the meeting and confrontation unfolded, or escalated, in a way which was unexpected from the appellant’s perspective. While the evidence suggested some argument and abuse between the threat of violence and the commencement of the violence, there is nothing to suggest that there was any fresh insult or other conduct by the victim, beyond his refusal to comply with the demand he hand over his phone, that might reasonably explain the appellant’s conduct.
In summary, the respondent’s submissions in relation to the issues of provocation and intention should be accepted. Properly analysed, no relevant error has been identified in relation to the Magistrate’s consideration of these factual issues. The appellant’s submissions ultimately go merely to the weight which should be attached to these matters, which is relevant only as an aspect of the complaint of outcome error or manifest excess in the penalty ultimately imposed.
Grounds 2 and 3: manifest excess
It is appropriate to consider grounds 2 and 3 together. They allege outcome error, or manifest excess, in the sentence imposed in two respects: first, in imposing a sentence of imprisonment; secondly, in rejecting the application to deal with the matter without recording a conviction.
Of course, in establishing an error of this nature, the appellant must go further than assert or establish that the Magistrate attached insufficient weight to a particular matter in the sense that another sentencing judge might have attached more or less weight, or might otherwise have arrived at a different penalty. In order to establish error within the meaning of House v The King the appellant must establish that the sentencing discretion miscarried in the sense that the sentence was outside the appropriate range of sentences that might be imposed in the circumstances, or that the sentence imposed was plainly unjust.
As to the circumstances of the offending, the appellant acknowledges the seriousness of his conduct, but emphasises the relatively short duration of the conduct and the nature of the provocation to which he was responding. The appellant’s submissions in respect of ground 1 are relevant in this context. While the matters emphasised by the appellant were relevant considerations (and taken into account by the Magistrate), it was also relevant that the offending was not entirely spontaneous. The provocation, to some extent at least, preceded the meeting, giving the appellant an opportunity to consider his response before meeting with the victim. It did not have the immediacy, for example, of the provocation experienced by the defendant in Tazebe v Police.[2]Further, the violence, while short in duration did involve a number of blows, including both punches to the victim’s head and kicks to his body. Further, the conduct was aggravated in that the other male joined in the assault. The victim’s injuries were significant, and an entirely predictable consequence of the assault carried out. Indeed, as the Magistrate observed, it was fortuitous for all involved that the injuries were not more significant. All things considered, the Magistrate was in my view entitled to regard the offending as being towards the middle of the range of seriousness for this category of offending. The maximum penalty in question was imprisonment for four years.
[2] Tazebe v Police [2013] SASC 194.
As to the matters personal to the appellant, the Magistrate mentioned and took account of all relevant matters. The appellant pointed out that the Magistrate referred to the appellant as 24 years of age. While accepting that this was accurate as a reference to the appellant’s age at the time of sentencing, the submission was that the Magistrate may have overlooked the fact and significance that the appellant was only 22 at the time of offending; and that the Magistrate may thus have not fully appreciated the significance of the appellant’s relative lack of years. I do not think there is merit in this submission. I do not accept that the Magistrate overlooked that the appellant was 22 years of age at the time of the offending. While the Magistrate did not devote any separate attention to his age, other than mentioning it, I do not think he overlooked the significance of this factor. It is plain from the Magistrate’s references to the appellant’s upbringing, relationship to his father and to the fact that he was still undertaking his education, that he was very conscious of the appellant’s stage in life.
The appellant appropriately emphasised his good prospects of rehabilitation, but again the Magistrate clearly took account of this, describing his prospects as “high” and the likelihood of him reoffending as “improbable”.
In my view, it was within the Magistrate’s sentencing discretion to conclude that a sentence of imprisonment was appropriate. While there was little need for personal deterrence, the nature and seriousness of the offending, and the consequential need for general deterrence, in my view made a sentence of imprisonment necessary and appropriate.
Having determined that it was necessary and appropriate to impose a sentence of imprisonment, there was no option for the Magistrate to then order that no conviction be recorded. As counsel accepted in argument before this Court, neither s 16 nor s 39 of the Criminal Law (Sentencing) Act operate to permit an order that no conviction be recorded in circumstances where the Court has determined to impose a sentence of imprisonment. Given my decision that it was a permissible exercise of the Magistrate’s sentencing discretion to order a term of imprisonment in this case, it is not necessary for me to consider the issue.
However, for the sake of completeness, and because it was nevertheless necessary for the Magistrate at some point in the sentencing process to consider whether it was appropriate to deal with the issue of penalty on some other basis that would permit an order that no conviction be recorded, it is appropriate that I address the matter.
Whether such an order should be made is a matter of discretion. I was taken to various cases by counsel for the appellant which are illustrations of occasions on which the courts have been persuaded to make such an order, demonstrating what might be considered a relatively significant degree of leniency, if not mercy, in respect of some quite serious offending. It is apparent from a consideration of these authorities that concerns about employment prospects, and the potential or likely impact of a conviction on those prospects, have often motivated a court to make such an order.
However, even if some sentencing judges might have seen fit to make such an order in this case, that is not the issue on this appeal. Before interfering I must be satisfied that it was not open to the Magistrate to exercise the discretion in the manner he did. Despite the potentially very significant implications for the appellant’s proposed career of recording a conviction, and despite the other aspects of the appellant’s personal circumstances which are relevant to the appropriate penalty, it is my view that the nature and seriousness of the offending made it an appropriate exercise by the Magistrate of his discretion to reject the application that he sentence the appellant on a basis that involved no recorded conviction.
Conclusion
For these reasons, I dismiss the appeal.