Vivian Byron v Corey Le Mesurier

[2012] ACTSC 172

VIVIAN BYRON v COREY LE MESURIER
[2012] ACTSC 172 (5 November 2012)

Crimes Act 1900 (ACT), s 60(1).

Crimes (Sentencing) Act 2005 (ACT), s 17.

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 25 of 2012

Judge:             Burns J
Supreme Court of the ACT

Date:              5 November 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 25 of 2012
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:VIVIAN BYRON

Appellant

AND:             COREY LE MESURIER
  Respondent

ORDERS

Judge:  Burns J
Date:  5 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

1.          The appeal will be dismissed.  The orders of the magistrate are confirmed, except that the good behaviour order imposed by his Honour will commence 5 November 2012 and will expire on 15 October 2014.

2.          There is a prohibition on the publication of the name of the complainant.

1. The respondent in the current appeal was charged with an offence in the Magistrate’s Court under section 60(1) of the Crimes Act 1900 (ACT), alleging that on 19 January this year, he committed an act of indecency on the complainant without the consent of that person and being reckless as to whether the complainant had consented thereto.

2.          The proceedings were commenced by way of charge and the respondent was bailed to appear on 31 January 2012.  On that date, he was represented by a solicitor and he entered a plea of guilty.  The matter was then remanded to 16 March for sentence.

3. On 16 March, the matter came before the sentencing magistrate, who after hearing submissions in the matter and receiving appropriate evidence, proceeded pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT), and without recording a conviction imposed a good behaviour order.

4.          By a notice of appeal dated 4 April this year, the appellant, who was the informant with respect to the proceedings in the Magistrates Court, appealed from the orders made by the sentencing magistrate.  The grounds of appeal as set out in the notice of appeal are:

5.          Firstly, that the sentence imposed was manifestly inadequate;

6.          Secondly, that his Honour erred in failing to record a conviction, and;

7. Thirdly, that his Honour erred in failing to properly consider the factors in section 17 of the Crimes (Sentencing) Act 2005. 

8. Insofar as the appellant submits that his Honour erred in exercising his discretion under section 17 by failing to properly consider the factors in that section, I am unpersuaded by that argument. It appears that that argument is based upon the proposition that his Honour did not refer to any extenuating circumstances as referred to in section 17(3) of the Crimes (Sentencing) Act.  That section provides that in deciding whether to make a non conviction order, the court must consider certain listed matters.  One of those matters is any extenuating circumstances in which the offence was committed.

9. In my opinion, that does not require the court to find that there are extenuating circumstances before the court can exercise its discretion not to impose a conviction under section 17. Subsection (3) of section 17 merely requires the court to consider those matters that are set out there under. It is implicit that the court is only to consider those matters which are relevant to the particular sentencing process then before the court. So, for example, if there are no extenuating circumstances in which the offence was committed, the court may nevertheless, for other reasons, decide that it is appropriate to proceed pursuant to section 17.

10. I also note that the discretion which is provided by section 17 is quite a wide discretion. In that regard, subsection (4) to section 17 provides that the court may also consider anything else that the court considers relevant. So, whilst there are certain matters that the court must consider as set out in subsection (3), the court may also consider anything else pursuant to subsection (4) that it considers to be relevant.

11.       Grounds 1 and 2 of the appeal are effectively the same ground.  The appellant submits that the sentence imposed was manifestly inadequate in that no conviction was recorded.  In particular, the appellant’s case before me today is that the learned magistrate did not give appropriate weight to general deterrence when sentencing the respondent. 

12.       Having had an opportunity to read his Honour’s sentencing comments in total, and in the context of the submissions that were then before him, I am unpersuaded that his Honour did not give appropriate weight to general deterrence in imposing the sentence which he did impose.  It is clear that his Honour accepted that the offence was a serious offence.  Indeed he went so far as to refer to it as a very serious offence.  His Honour noted that it carried a maximum penalty of seven years’ imprisonment.  His Honour noted the circumstances of the offence as set out in the statement of facts.  He noted that the offence was constituted by the respondent using a camera for the purpose of taking a photograph of a woman at a student residence at the Australian National University whilst that woman was showering.  His Honour clearly referred to the potential effect upon the victim of this type of behaviour and the fact that behaviour of that type was behaviour for which there was simply no justification. 

13. His Honour went on to find, however, that the particular offence which was then before him, was an offence at the lower end of the range. Clearly by that, his Honour meant that whilst offences under section 60(1) of the Crimes Act 1900 are serious offences, the type of conduct which may come within the range of such an offence will vary very significantly. The type of conduct that was involved in this particular offence was, as his Honour observed, towards the lower end of the range of offences that might come within the ambit of section 60(1) of the Crimes Act 1900. 

14.       His Honour was faced with a difficult sentencing exercise.  He had a young man with very strong subjective features, who had committed one serious offence and it was necessary for his Honour to balance the requirements of general deterrence with the desirability of rehabilitation.  The respondent was 19 years of age at the time that the offence occurred and as I understand it, was still 19 at the time that he appeared before the Magistrates Court.  His Honour understandably gave considerable weight to the youth of the respondent and the desirability of rehabilitation.  In doing so, I am unpersuaded that his Honour overlooked general deterrence. 

15.       I am not persuaded that the sentence imposed by the magistrate was manifestly inadequate.  I am further not satisfied that his Honour made the errors alleged by the appellant with respect to sentencing the respondent.  As such, the appeal will be dismissed.

16.        The appeal will be dismissed.  The orders of the magistrate are confirmed, except that the good behaviour order imposed by his Honour will commence today and will expire on 15 October 2014.

17.       There is a prohibition on the publication of the name of the complainant.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:       James Middleton

Date:              26 November 2012

Counsel for the appellant:  Mr Lundy
Solicitor for the appellant:  Office of ACT Director of Public Prosecutions
Counsel for the respondent:  Ms Warrick
Solicitor for the respondent:  S & T Lawyers
Date of hearing:  5 November 2012
Date of judgment:  5 November 2012