Criminal law - Sentence appeal - Indecent assault - Whether fine manifestly excessive - Whether means of appellant taken into account in determining amount of fine - Whether refusal of spent conviction an error

Sentencing Act 1995 (WA), s 53

Fine of $5,000 set aside and fine of $2,000 substituted

1 On 7 September 2012 the appellant was convicted after a trial in the Magistrates Court of indecent assault contrary to s 323 of the Criminal Code (WA). He was fined $5,000. He now seeks leave to appeal against that sentence.

2 The notice of appeal was filed on 8 November 2012. An extension of time is therefore required. An affidavit of Ms Natalie Sinton, a lawyer from Legal Aid, has been filed explaining the reasons for the delay. Those reasons are that an appeal notice was lodged within time but rejected because it was on the wrong form. There was then delays in obtaining instructions because the appellant was at a detention centre in Northam. The delay is not lengthy and has been satisfactorily explained. An extension will be granted.

3 In essence, the appellant's grounds of appeal are that the fine was excessive having regard to the circumstances of the offence and the appellant's means and that the failure to make a spent conviction order resulted in a miscarriage of justice. An application for a spent conviction order was made to the magistrate but was refused.

4 The circumstances of the offence do not appear in the sentencing transcript but they are detailed in the written reasons for decision that were delivered by the magistrate.

5 In October 2011 the appellant was a detainee at the Curtin Immigration Detention Centre in Derby. The complainant was a catering assistant working at the centre. On 22 October 2011 the complainant was preparing for lunch when she noticed the appellant watching her. The appellant approached the food van and the complainant thought that he wanted his cigarette lit. Detainees are not allowed lighters or matches and it was the practice at the centre for detainees to ask guards or staff to light their cigarettes. The complainant asked a male employee to assist the appellant as she was busy unloading the van.

6 A short time later the complainant was in the kitchen when the appellant knocked on the door. The complainant went to the door and saw the appellant with a cigarette in his mouth gesturing that he wanted it to be lit. The complainant opened the door, lit her lighter and reached up to light the cigarette. As she did so the appellant reached out with his right hand and grabbed her left breast, squeezing it twice. The complainant said that the first time was relatively soft but the second time was quite hard. The complainant responded angrily and the appellant quickly left the area.

7 Later the same day the appellant was spoken to by a Client Services Manager and admitted that he had touched the breast of the complainant and that he was sorry. The following day, with the assistance of an interpreter, he also dictated a letter of apology. Notwithstanding these expressions of regret the appellant denied the offence when interviewed by police on 9 November 2011. He claimed that his hand had accidently brushed the complainant's breast as he passed the lighter back to her.

8 The claim that the touching was accidental was maintained at the trial. The magistrate did not accept the appellant's version of events. She found that he had made up his story about the touching being accidental because he became aware of how a conviction for an offence of this nature could affect his application for a visa to remain in Australia. Her Honour found that the appellant had deliberately grabbed the complainant's left breast and squeezed it twice and that he was guilty of indecent assault.

9 The prosecution accepted that a custodial sentence was not appropriate. Given that the appellant remained in detention at the time of sentencing and that it was unknown whether that position would change in the foreseeable future, community based options were not open. In those circumstances, the only available options were a conditional release order or a fine.

10 Defence counsel submitted to the magistrate that the quantum of any fine was constrained by the appellant's means. He said that the appellant had no income and that whilst he had been accepted as a refugee a decision as to a permanent visa had yet to be made. There was reference to the possibility that a conviction could have an adverse effect upon the appellant's visa status. Defence counsel said that the appellant was an ethnic Hazara from Afghanistan but had moved with his parents to Pakistan when he was twelve. In Pakistan he had worked in a bakery, as a painter, as a taxi driver, as a labourer and in a restaurant. Whether he would be allowed to stay in Australia and what his prospects of employment were in that event were unknown.

11 Defence counsel then raised the possibility of a spent conviction order. The response to that suggestion was as follows:

HER HONOUR: Absolutely not. The reason being any sexual assault, even at the lower end of the scale, is serious. It is a matter where no remorse has been shown in effect because of the version of the events given. It's a matter where the community should be aware of the nature of the events so there should be a public interest in the knowledge of the offence. It's a matter where any future employer should be aware that this has occurred.

WATSON, MR: I accept the application is after trial, so I accept that as well. I also accept or understand that I can't make the application on the basis that it would affect his immigration process, so I believe that even a spent conviction it might influence and still an issue that could be looked at, so I appreciate that. But I still make application given his circumstances and his previous good character.

HER HONOUR: Because you can't prove the adverse immediate effect and if there was an immediate adverse effect then the court would have to weigh it up in terms of the public interest. I was looking at spent convictions this morning for another matter that I had this morning or last night and this morning as to what they're applicable to and it's quite interesting the Supreme Court decisions looking at where there is a public interest in knowing that an offence has been committed and one of the most recent ones was the taxi driver with the camera up the girls' skirts.

He was convicted and applied for a spent conviction, it was refused. He appealed to the Supreme Court and in that case they said (1) there was certainly a public interest in knowing of that offence because it was of a sexual nature and (2) that any prospective employer would need to know about that to assess whether to employ him. They did say that probably he would never employed as a taxi driver again and that was probably inevitable because of the publicity and the fact that he wouldn't allowed to drive as a taxi driver again and that it would have an immediate impact upon him and his family because he wasn't going to be able to work easily. But the public interest in that offence far outweighed the immediate adverse affects upon him.

I don't know what Mr Hussaini's prospects are and I don't know whether he will be staying in Australia or not, but certainly if he does stay in Australia it's too speculative to know where he would work, whether he would need to have a clear record of offences of no offending to be able to obtain employment and certainly in some of the areas that you have nominated, a house painter, they may not ask for a police clearance, they may if it's a government job. Certainly as a baker, I don't know whether he would come into contact with people that - I just don't know, it's just too speculative.

WATSON, MR: I appreciate that. The only thing I would suggest is the spent conviction might assist in immigration purposes in that it wouldn't hide the conviction.

HER HONOUR: I certainly wouldn't give him a spent conviction to help him with his immigration, that's really not up to this court. If there was going to be an immediate adverse effect upon him then that would need to be put before the court and the court would then need to consider that. I think it's very important that it's a matter that should be dealt with in the appropriate channels and they can look into the conviction.

WATSON, MR: The Immigration Department?

HER HONOUR: Yes, and not up to this court (ts 3 - 4).

12 Defence counsel submitted that in considering the sexual nature of the offence it was relevant to take into account the stress that the appellant had experienced from being detained while waiting for a decision on his visa application. At the time of sentencing the appellant had been in immigration detention for approximately 13 months. He had mentioned to his lawyer on many occasions about the stress he had suffered, though he had refused offers of counselling.

13 After hearing submissions from the prosecutor, which were essentially that a spent conviction was not appropriate and that the court was restricted to either a fine or a conditional release order, her Honour said:

I feel realistically because it's a section 333 offence (sic) which carries a twoyear imprisonment or a $24,000 fine that it would really have to be a fine. It's certainly not a conditional release order matter (ts 5).

I have only a very few options for sentencing. This offence does carry a twoyear prison term but I consider that imprisonment is not appropriate. However, I consider a fine of $5000 is appropriate. Even though I accept you are in a stressful and unnatural situation it does not excuse the offence against [the complainant] (ts 6).

Ground 1 - Was the sentence manifestly excessive?

15 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J).

16 A claim of manifest excess depends on establishing implied error in the type or length of the sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.

17 In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ); MacDougall v The State of Western Australia [2009] WASCA 232 [12] [13] (McLure P).

18 The maximum penalty for the offence of indecent assault is 5 years' imprisonment. The summary conviction penalty is 2 years' imprisonment and a fine of $24,000. The summary conviction penalty is a jurisdictional limit; that is, it is the maximum penalty that can be imposed by a magistrate when sentencing an offender on summary conviction. However, when sentencing an offender for an offence that can be dealt with either summarily or on indictment a magistrate is entitled to have regard to the maximum statutory penalty notwithstanding that he or she cannot impose a penalty that exceeds the jurisdictional limit: Wiltshire v Mafi [2010] WASCA 111 [26]. In this case the magistrate only referred to the summary conviction penalty. To the extent that that was an error it was only favourable to the appellant.

19 As to the standards of sentencing observed in relation to indecent assault, no range is apparent in respect to sexual offences of this nature: Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [47] (Wheeler JA); RJB v The State of Western Australia [2009] WASCA 49 [46] (Owen, Wheeler and Miller JJA). Nonetheless, where touching takes place outside the complainant's clothing and is relatively brief the sentence that should ordinarily be imposed is a noncustodial one: Narkle v Hamilton [2008] WASCA 31 [45]. See also Knott v Moriarty [2010] WASC 36 and SA v McKinnon [2009] WASC 7.

20 The existence of a range, where it can be determined, and the fact that a sentence is above that range is a factor that may indicate that a sentence is manifestly excessive. However, it is not determinative of that question and the absence of a range does not mean that the question of whether a sentence is manifestly excessive cannot be answered. It merely means that other factors must be looked to.

21 As to the seriousness of the appellant's conduct, the offence appears to have occurred on the spur of the moment and to have been of very short duration. It involved touching over the clothes and, whilst no doubt unwelcome and distressing, it was not suggested that there was any bruising or long term psychological effects. Whilst any offence of indecent assault is serious, the offence covers a wide range of conduct and this offence must be considered to be at the lower end of that range. That was a characterisation accepted by the respondent at the hearing of the appeal.

22 As regards the personal circumstances of the offender, as I have noted above, he was originally from Afghanistan and had lived as an adult in Pakistan before coming to Australia as a refugee. Since arriving in Australia he had been detained in an immigration detention centre. He had no criminal record in Australia and the claim by the appellant's counsel that he had no other prior criminal history could not be contested. It was appropriate to treat him as a person of previous good character for the purposes of sentencing. He was a relatively young man, being 25 at the time of the offence and 26 when he came to be sentenced. He was unemployed through no fault of his own and had no income. The lack of means to pay a fine is raised by ground 2 but it is also relevant to the question of whether the sentence was manifestly excessive.

Ground 2 - Was there a failure to take into account the appellant's means?

23 Ground 2 alleges that the magistrate erred by failing to take into account the means of the appellant as required by s 53 of the Sentencing Act 1995 (WA). In effect this ground asserts that the sentence imposed is one that is inconsistent with any proper regard for the mandatory considerations that are applicable when a court is deciding the amount of a fine.

24 Section 53 of the Sentencing Act provides as follows:

(1) Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account -

(b) the extent to which payment of the fine will burden the offender.

(2) A court may fine an offender even though it has been unable to find out about the matters in subsection (1).

(3) A court must not fine an offender if satisfied that after paying compensation to the victim in accordance with a compensation order under Part 16, the offender will be unable to pay the fine within a reasonable time.

25 The reference to div 1 of pt 2 of the Sentencing Act is to the general sentencing principles. These include that a sentence imposed on an offender must be commensurate with the seriousness of the offence: s 6(1). This means that whilst a court must take into account the means of an offender in considering the amount of any fine that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.

26 However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.

27 In the present case the appellant had no immediate means by which to pay a fine of any size. However, there was some prospect that if permitted to remain in Australia he may be able to pay a fine in the future. This of course would be dependent on him having a source of income. The indications were that if he was able to obtain employment it was likely to be in an unskilled job with relatively low pay. The appellant also faced the obvious difficulties of a migrant who could not speak English. In these circumstances, it can be reasonably inferred that a fine of $5,000 was beyond the appellant's capacity to pay either at the time of sentencing or within any reasonable time thereafter.

28 Whilst the magistrate was informed of the appellant's lack of means and limited prospects it is not apparent to what extent, if at all, she took this into account in determining the size of the fine. The failure to specifically refer to a relevant consideration does not necessarily mean that it has not been taken into account. However, the outcome here is not consistent with any proper regard being had to the means of the appellant or the extent of any burden which the fine would have upon him.

29 Even without having regard to the appellant's means, a fine of $5,000 was a high one given the circumstances of the offence. Having regard to his personal circumstances and, in particular, his lack of capacity to pay, that fine was, in my view, manifestly excessive. It was possible to impose a fine that was significantly lower yet still be commensurate with the seriousness of the offence.

30 For these reasons grounds 1 and 2 succeed and the sentence imposed by the magistrate will be set aside and a new sentence imposed. In these circumstances, it is strictly unnecessary to consider the balance of the grounds but I will do so for the sake of completeness.

Ground 3 - Was a Conditional Release Order wrongly excluded?

31 The appellant contends that the magistrate erred by wrongly excluding a conditional release order as an available option. It is submitted that the magistrate did this by stating that this was 'not a conditional release order matter'. What is suggested is that the magistrate was in effect saying that a conditional release order was not open in respect of an offence of indecent assault under s 323 of the Criminal Code.

32 It is not open to doubt that a conditional release order was an available sentencing option as a matter of law. The penalties provided for in the offence provision are imprisonment or a fine. However, pursuant to s 42 of the Sentencing Act where the penalty for an offence includes imprisonment and a fine the court may use any of the sentencing options in s 39(2). Those options include a conditional release order.

33 A conditional release order can be imposed only if the court considers that there are reasonable grounds for expecting that an offender will not reoffend during the term of the conditional release order and the offender does not require supervision by a Community Corrections officer: s 47. A court making a conditional release order may impose any requirements on the offender it decides are necessary to secure the good behaviour of the offender: s 49(1).

34 I do not accept the appellant's argument. It is apparent from reading the transcript as a whole that the magistrate recognised that a conditional release order was an available option for an offence of this type. Her statement that this was 'certainly not a conditional release order matter' was said in response to sentencing submissions and in particular a submission from the prosecutor that the only realistic options were a fine or a conditional release order. What her Honour clearly meant was not that a conditional release order was not available but that it was not appropriate in the circumstances of this case. This ground is without merit.

Grounds 4, 5 and 6 - Failure to grant a spent conviction

35 The appellant submits that in responding 'absolutely not' when defence counsel first suggested a spent conviction the magistrate prejudged the application before hearing it in full. It is also submitted that in all the circumstances the failure to grant a spent conviction order resulted in a miscarriage of justice.

36 As to the question of prejudgment, I am unable to accept the appellant's contention. There may be cases where a spent conviction is so clearly inappropriate that submissions in that regard will be pointless. In any event, the magistrate was clearly only expressing a preliminary view. Defence counsel went on to address the question of a spent conviction and her Honour responded to those submissions and gave reasons for her conclusion as to why a spent conviction was inappropriate.

37 In giving her reasons, the magistrate referred to a recently decided case involving a taxi driver. It is apparent that this was a reference to Wright v McMurchy [2011] WASC 219 which has now been the subject of a further appeal to the Court of Appeal: See Wright v McMurchy [2012] WASCA 257. The conclusion that the magistrate drew from that case was that in some cases there may be a public interest in an employer or potential employer being aware of an offender's offending behaviour because that behaviour may have relevance in assessing the offender's reliability and suitability for the type of work which he or she pursues. Whilst in Wright v McMurchy the appellant had committed offences during the course of his work as a taxi driver and the present offence was not committed during the course of any employment, the more general principle that there may be a public interest in some convictions being recorded cannot be denied.

38 As to the question of whether the denial of a spent conviction was a miscarriage of justice, such a claim could only be established if in all of the circumstances no other option was properly open other than to make a spent conviction order. The question of whether to grant or refuse a spent conviction application is an exercise of discretionary judgment. If it was open for the magistrate to conclude that a spent conviction was not appropriate this ground must fail. As with other sentencing decisions it is not relevant that an appellate court, if it was the sentencer, might come to a different conclusion. However, in this case, having decided that grounds 1 and 2 must succeed it will be necessary to resentence the appellant and in doing so consideration must be given afresh to the question of a spent conviction.

39 It was accepted by the prosecution, both before the magistrate and on this appeal, that imprisonment would be an inappropriate disposition. It is necessary to consider those options listed in s 39(2) Sentencing Act, bearing in mind that a more serious option should not be used unless a less serious option is inappropriate: s 39(3).

40 An intensive supervision order or community based order are not viable as options given the appellant's continuing detention. Any such orders could not be meaningfully enforced in immigration detention and are only intended for those who can be conditionally released into the community.

41 The offence is too serious to justify the imposition of no sentence pursuant to s 46 of the Sentencing Act and it was not suggested that this option was realistically open. That leaves only a fine or a conditional release order. In some circumstances a conditional release order may have advantages in that conditions can be imposed which make provision for rehabilitation. Given that the appellant remains in detention it would be pointless to make such conditions in this case. In any event, I am of the view that a conditional release order would not be commensurate with the seriousness of the offence. I have come to that conclusion taking into account the circumstances of the offence and the fact that the matter proceeded to trial. The fact that the appellant maintained a plea of not guilty is not an aggravating circumstance, however, it is the absence of a mitigating factor. Notwithstanding the letter of apology the fact that this matter proceeded to a trial shows that the appellant was unwilling to accept responsibility for his actions and lacked remorse.

42 The only option is a fine. The only realistic possibility that the appellant could pay a fine in any amount is if he is released from detention and permitted to work. In these circumstances, whilst the fine of $5,000 did not have proper regard to the appellant's lack of means it is difficult to contemplate a fine that he would have the capacity to pay in the foreseeable future. This does not mean that a fine can not be imposed. Nor does it mean that the offender's means and the impact of a fine can be ignored.

43 If the appellant is not granted a visa and remains in detention or is deported the enforcement of a fine would be effectively impossible. In these circumstances, a fine could be viewed as having largely symbolic value. However, if the appellant is granted a visa and finds work or is granted welfare benefits he would have the capacity to pay some quantum of fine. In my view, a fine of $2,000 would be the lowest fine that could be imposed that would be commensurate with the seriousness of the offence.

44 As regards a spent conviction the discretion is governed by s 45 of the Sentencing Act. A court sentencing an offender is not to make a spent conviction order unless (a) it considers that the offender is unlikely to commit such an offence again; and (b) having regard to the fact that the offence is trivial; or the previous good character of the offender, it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

45 A spent conviction order cannot be made unless the preconditions in s 45 are met. The appellant must satisfy the court that he is unlikely to commit such an offence again and that he should be relieved of the adverse effect of the conviction having regard either to the fact that the offence is trivial or to his previous good character: Koenig v Ryan [2001] WASCA 339. The discretionary power to order a spent conviction is of an exceptional character and requires the court to determine whether there is some particular circumstance to show that it would be desirable why the adverse effect of the conviction should be immediately set aside. That may be found in the fact that a conviction might be an impediment to the offender undertaking particular employment or would lead to exceptional hardship. The power should be used sparingly in a clear case where, for cogent reasons, its exercise is seen to be desirable: R v Tognini [2000] WASCA 31. There needs to be clear and cogent reasons for the exercise of the power including identifying, rather than merely speculating on, the potential adverse effect.

46 It is difficult to reach any conclusion as to whether the appellant is unlikely to commit an offence of this nature again. Whilst he has no criminal record in Australia the information regarding his past history is sparse. What it was that motivated him to commit this offence and whether that motivation continues is unknown. It does not automatically follow from a lack of prior convictions that an offender is unlikely to reoffend: Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [513] - [514]. I am unable to conclude that the appellant is unlikely to commit such an offence again. Even if that conclusion could be made it would be necessary for the second limb of s 45(1) to be satisfied.

47 The offence is not trivial either of its type or its circumstances. However, triviality is only one matter to be taken into account in considering the second limb of s 45(1). In appropriate circumstances comparatively serious conduct may be offset by good character and the unlikelihood of committing a further offence: Fitzsimons v GD [2008] WASC 172 [12]. It is not the case that a spent conviction order cannot be given for an offence of a serious nature. The seriousness of the offence is a relevant factor in the exercise of any discretion and may in appropriate circumstances be a very weighty factor. However, it is not a disqualifying factor: Brewer v Bayens [32] (McLure J).

48 The appellant sought to rely on the fact that a spent conviction was granted for an indecent assault in SA v McKinnon. However, that case involved an intellectually disabled offender who had pleaded guilty and successfully participated in an intellectual disability diversion programme prior to sentence. Whilst the offending in that case was similar, in that it involved touching a young female complainant over her clothing, the personal circumstances were markedly different.

49 As regards any adverse effect that a conviction will have on the appellant, this seems largely speculative. There was a suggestion that a conviction will have the result that the appellant will fail the character test in regards to his application for a permanent visa, though it was conceded that the Minister for Immigration retains a discretion in that regard. The possibility of a adverse effect on future employment may very much depend upon what type of employment the appellant seeks, assuming he is released from detention. The appellant was not able to identify any particular adverse effect of a conviction on any particular employment.

50 In my view, in these circumstances, a spent conviction is not appropriate and I would not exercise the discretion to grant one.

51 Leave to appeal is granted in respect of grounds 1 and 2 but refused in respect of the remaining grounds. The appeal is allowed on grounds 1 and 2 and the sentence of the magistrate is set aside and in lieu thereof a fine of $2,000 is imposed.