Lukatela v Apostoloff [2010] ACTSC 74

4. This judgment concerns the appeal against sentence. Counsel for the appellant confined the contention to whether or not a conviction should have been recorded. If the appeal is successful in that respect, the appellant does not seek to have some other penalty substituted for the 12 months good behaviour bond.

5. There was no dispute about the applicable principles. They can be stated briefly.

6. In the first place, as the appeal is on behalf of the prosecutor, the Court must recognise that there are strong reasons why such an appeal should be rare. See the observations of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300. Counsel for the appellant in this matter did not suggest that the considerations to which their Honours there referred were any the less relevant in a case such as the present where, under ss 207 and 208(1)(e)(ii) of the Magistrates Court Act an appeal lies as of right.

7. In The Queen v Osenkowski (1982) 30 SASR 212, King CJ at 213 explained the position as follows:

The proper role for prosecution appeals, in my view is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

See also R v Boudelah and Charlston [1991] FCA 124; (1991) 28 FCR 176 at 186; and The Queen v Griggs [1999] FCA 1573; (1999) 95 FCR 490 at 493-494.

1. In the second place, the appeal requires the Court to consider interfering with a discretionary decision. The principles upon which a Court should do so are well established: House v The King [1936] HCA 40; (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672.
2. The position is stated by Kirby J (with whom Gummow and Gaudron JJ agreed) in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 339, where his Honour said:

The necessity to show error ... is fully accepted by courts deciding appeals against sentence ... Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a break is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.

As on appeal from discretionary decisions, it will sometimes not be possible to identify with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.

The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct "idiosyncratic views" of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise though the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate. (footnotes omitted)

1. Consequently, as an appellate court, this Court should interfere with the sentence imposed only if it is satisfied that the sentencing Magistrate was in error in acting on a wrong principle, or misunderstood or wrongly assessed some significant feature of the evidence. Error may appear if the sentence itself is so excessive or inadequate as to indicate such an error, even though it is not otherwise manifest.

1. At the time the offence was committed, the respondent was a member of the Australian Federal Police (AFP) working in the Regional Watch House at the City Police Station in Canberra.
2. On the night of 12 June 2006, she was on duty with other officers when the victim of the offence was arrested for breaching a protection order. He was conveyed to the Watch House for processing. At the Watch House he was taken from the police van, and escorted to the charge room, where a sergeant was in charge. The respondent and another police officer were also present. The victim was directed to stand on a yellow line in front of the charge counter, but after a short time whilst the sergeant stood behind the counter and asked him questions regarding his welfare, the victim became argumentative and was apparently affected by intoxicating liquor. He moved away from the yellow line towards the other police officer. He was asked to return to the yellow line, and after a short time he did so. However, whilst being asked questions, he continued to talk in an aggressive manner, provoking a loud exchange from the sergeant in charge. The sergeant in charge then took a canister of spray and sprayed it towards the victim from a distance of about one metre. Apparently, it did not spray into the victim's eyes. He walked from the yellow line towards the rear of the charge room. The respondent then walked to the charge counter and obtained the canister of foam, and walked towards the victim, raising the canister of foam and pointing it towards the victim's face. After a brief conversation, which suggested that the victim was still not going to cooperate, she raised the canister of foam and from a distance of about one metre sprayed it towards his face. The canister of foam was then returned to the charge counter.
3. The victim was clearly argumentative and uncooperative. The first spray did not apparently have the suppressing effect on his demeanour which the sergeant anticipated. The victim's language was crude and offensive. It was of a complaining nature rather than a threatening nature. His body language was not aggressive.
4. As a judge of this Court found when hearing the respondent's appeal against the finding of guilt, the Magistrate accepted that the appellant believed that the victim would become aggressive and would become a direct threat of physical violence to her. However, her Honour also found that the Magistrate was satisfied that, whilst accepting that the respondent in fact acted out of concern for her physical safety, there were no reasonable grounds for that belief. The appeal against the finding of guilt was sustained on that basis, namely that there were no reasonable grounds for the respondent to believe that she or any of her colleagues were in danger of anything more serious than having to listen to a lot of bad language whilst having their time wasted by the victim's general lack of cooperation. Consequently, the defence of self-defence was not made out.
5. The above details of the facts are taken in large measure from the reasons for decision in the respondent's unsuccessful appeal on the finding of her guilt of the offence.

1. The Magistrate delivered ex tempore reasons for the penalty which was imposed, having found the respondent guilty of the offence.
2. Her Honour pointed out the need to take into account the nature and circumstances of the offence, its seriousness including the serious consequences to the victim, and on the other hand the need to consider the subjective elements relating to the respondent: her character, antecedents, age, and any extenuating circumstances surrounding the commission of the offence.
3. Her Honour described the offence as a serious one. She recognised the maximum sentence for the offence as being five years' imprisonment. She also pointed out that it was committed in circumstances where the respondent had a duty of care towards the victim. She said that police officers on behalf of the community, whilst they may be exposed to behaviour that the rest of the community does not normally get exposed to, should nevertheless discharge their duties in a way that does not cause harm to the community or people within the community charged with offences.
4. Her Honour accepted that the respondent was remorseful for what she had done. She said:

[The respondent] acted once in a fashion, whether or not it was because she saw what Sergeant [...] had done or whether it was for some other reason. She made a mistake.

She made a mistake which has had a very serious consequence upon her, the consequence being that she lost the job that she was committed to, a job that she wanted to do, and that is a job that she took on to serve members of the community ... She now works in other employment and that job too, of itself, is not an easy job. It's a job that would have various stressors and strains, but in any event, she is the sort of person who has shown herself to have the character to take on another position which, in my view, would be a rather difficult position, working with mentally disadvantaged people.

1. The respondent had no prior record of offending. The Magistrate referred to the need to impose a sentence which both deterred the respondent, and other people in the community, from committing similar offences.
2. The Magistrate said that she was:

... of the view that to impose a conviction upon the defendant would serve no more punishment upon her than what she has already experienced.

I can see no good reason why this community would expect [the respondent] to be punished any further by a conviction being recorded against her as opposed to a conviction not being recorded against her. I have found the offence against her proved and I suspect that that was probably one of her worst fears.

She has lost her job. She may not get the job back in the AFP. They may well consider, irrespective of anything that I do here, it may well be that she - she will not ever be employed in her job again, and that, I accept, is a harsh penalty on her.

I cannot see that this community would be served any more by me imposing upon her a conviction. Certainly I would never considering sending (sic) on her - on this evidence and on this offence, I would not consider that she warrants a custodial sentence, or indeed any other type of sentence. She made one mistake, and that one mistake may well and truly affect her job prospects and her career prospects for the rest of her life.

But nevertheless, I am of the view that to impose a conviction upon her would not serve to punish her or to deter her or to, indeed, deter anybody else from committing a like offence. I think what has happened to her is sufficient punishment enough for her, and I do not believe that it is necessary to make an example of her to anybody else. Her behaviour is condemned, she knows that her behaviour is condemned, and others who know of her behaviour would know that that type of behaviour is condemned.

1. The grounds of appeal are that the sentence was manifestly inadequate, that insufficient consideration was given to the respondent's lack of remorse for her actions, that insufficient consideration was given to the circumstances of the offence, and to general deterrence and punishment in relation to the respondent.
2. It was further contended in the grounds of appeal (but not pursued in argument) that the Magistrate had erred when characterising the commission of the offence by the respondent as a "mistake". That was an appropriate position to take. In my view, the Magistrate in using the word "mistake" was not indicating anything about the circumstances in which the conduct giving rise to the offence took place. In a colloquial sense, she was accepting that the respondent had committed the offence and that the respondent regarded it as a mistake she had made in life to have done so.

24. The final ground of appeal was that the Magistrate erred in making an order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT), that is, imposing a good behaviour order under s 13 of that Act without convicting the respondent of the offence. The legislative predecessor to s 17 is s 556A of the Crimes Act 1900 (ACT) which is in substantially similar terms to the present provision. The cases decided under s 556A will generally be of assistance in considering the terms of s 17 of the Crimes (Sentencing) Act 2005 (ACT)

1. Section 17(2) of the Crimes (Sentencing) Act 2005 provides:

Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a) ...

(b) a good behaviour order under section 13.

1"> 26. Section 17(3) directs the Court, in deciding whether to make a non-conviction order, to consider the offender's character, antecedents, age, health and mental condition; the seriousness of the offence; and under subparagraph (c) to consider "any extenuating circumstances in which the offence was committed". It is also empowered under s 17(4) to consider anything else the Court considers relevant.

27. It is important to note that s 17(3)(c) refers to "any extenuating circumstances in which the offence was committed". In Davis v Conroy [2005] ACTSC 8, Moore J pointed out that the reference to extenuating circumstances involves words of limitation. In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, Spigelman CJ (with whom Simpson J and Einfeld AJ agreed), said at [47] of a similar statutory provision:

That provision does not permit the Court to have regard to "extenuating circumstances". The provision permits the Court to have regard to "the extent to which the offence was committed under extenuating circumstances". This subparagraph requires some kind of link between the circumstance said to be extenuating and the commission of the offence. Nothing in her Honour's reasoning suggests that she made any such finding. (original emphasis)

1. Similarly, under s 17(3)(c) of the Crimes (Sentencing) Act 2005 (ACT) the relevant extenuating circumstances are those in which the offence was committed. However, what might in a more general sense be regarded as extenuating circumstances may well be properly considered as falling within other factors specified in s 17(2) such as the health, character or antecedents of the respondent. In any event, they may be considered by reason of s 17(4) referred to above. To the extent that s 17(3)(c) may limit matters which may be considered when deciding whether to impose a non-conviction order, the terms of s 17(3)(a) and (b) and s 17(4) would remove those limitations for practical purposes.

29. I accept the contention on behalf of the appellant that the recording of a conviction is the usual result of a guilty verdict or a plea of guilty to an offence charged, with the option being available to the sentencing judge not to take that step having regard to the matters set out in s 17. The fact of conviction is a formal mark of society's disapproval of the wrong doing and is part of the offender's punishment. See eg Higgs v The Queen [1999] FCA 1562 per Wilcox, Einfeld and Kenny JJ at [3]; see also the remarks in The Queen v McInerney (1986) 42 SASR 111 at 123.

1. The failure to record a conviction for an offence can, of itself, be manifestly inadequate: Director of Public Prosecutions v Kose [2006] VSCA 119, per Ashley JA at [33], and the cases cited by his Honour at [30] ff. On the other hand, the existence of the power to make a non-conviction order in terms which encompass offences such as that of which the respondent is guilty indicate that the making of a non-conviction order for such an offence is not necessarily manifestly inadequate. In the context of another offence, see for example Director of Public Prosecutions v Marks [2005] VSCA 277 per Eames JA (with whom Buchanan and Nettle JJA agreed) at [24]-[30]. The Court must have regard to the circumstances of each case.
2. In this matter, the sergeant in charge at the time was also charged with, and convicted of, the same offence. He was also charged with, and convicted of, a number of like offences: Lukatela v Birch (No 2) [2008] ACTSC 142. It was not contended that the penalties imposed upon him set any tariff applicable to the respondent, having regard to his degree of involvement as the initiator of the conduct in relation to the victim and his seniority and position of responsibility. However, it was stressed that he was convicted of those offences to mark their significance and society's reprobation of his conduct. Whilst he was given credit for pleading guilty to the offences with which he was charged, it was plain that he was using the capsicum foam as a means of 'offender management, of bending detainees to his will and of punishing those who would not comply'. In addition, although that may have been the consequence of the respondent's conduct, the Magistrate who had the benefit of seeing and hearing the evidence accepted that the appellant engaged in the conduct in the belief that the victim might become aggressive and would present a threat of violence towards her (albeit a belief which for which there were no reasonable grounds).
3. It is therefore appropriate to start from the position that, the charge having been proved, a conviction should have been recorded. It is a serious offence. It was committed by a law enforcement officer in the course of her duties. She was in a position of power and trust in relation to the victim: see eg De Rosa v Western Australia [2006] WASCA 57; (2006) 32 WAR 136 at [74], and as to the significance of the relationship of trust with the victim: Director of Public Prosecutions v Marks [2005] VSCA 277 at [35]- [36]. It involved the deliberate use of the capsicum foam spray. Consequently, as counsel for the appellant urged, the factor of general deterrence is a significant one. Those in such a position of power and trust on behalf of the community should appreciate the serious consequences of a breach of their responsibilities by criminal conduct.
4. The question ultimately, however, is whether it is shown that the Magistrate erred in the exercise of her sentencing discretion by not proceeding to record a conviction. Her Honour explicitly referred to the need to impose a penalty which had a general deterrent effect. She adverted to the general community expectations in that regard. She adverted to the need for specific deterrence in relation to the respondent. Her Honour, as her sentencing remarks indicate, after considering those matters, did not consider in the particular circumstances of this case that the recording of a conviction was necessary.
5. I am not persuaded that her Honour erred in reaching that conclusion. The respondent's circumstances had particular elements which remove her case from one when a public official in a position of trust simply abuses that trust for an improper purpose. She was in an inferior position in the hierarchy in the Watch House and was given the lead by the conduct of a more senior officer. She engaged in the conduct, as the Magistrate found, not so much to bend the victim to her will but because she had a belief that he constituted a threat to her, albeit an unreasonable belief. (Counsel for the respondent on this appeal also asserted, without direct dispute from counsel for the appellant, that there was an informal culture in the Watch House at the time which suggested the use of the foam spray was not heinous conduct. I have not taken that matter into account as it does not appear to have been referred to specifically by the Magistrate or in submissions to the Magistrate.)
6. It was contended that the Magistrate did not recognise and take into account the respondent's lack of remorse for her conduct. She did not plead guilty to the offence. That is a neutral matter. She contended unsuccessfully that she was not guilty of the offence by reason of self-defence. That defence failed, not because she did not fear for her safety (the Magistrate found that she did) but because her fear had no reasonable grounds to support it. The Magistrate, in my view, was entitled to accept that, her defence having been unsuccessful, the respondent was remorseful for having committed the offence. She saw the respondent after recording the finding of guilt. True it is that the respondent's conduct then might simply have been self-pity for facing the consequences of her guilt. But the Magistrate was entitled to accept that her then obvious distress also indicated regret and remorse for the conduct she had engaged in. It is not possible, in my view, to conclude that the Magistrate erred in accepting that the respondent was truly remorseful for having committed the offence, or to have taken that matter into account when deciding whether to make a non-conviction order.
7. The appellant contended further that the Magistrate erred in making a non-conviction order because her Honour did not correctly take the steps required by s 17 of the Crimes (Sentencing) Act 2005 (ACT) to do so. That is in part because the Magistrate said she thought the respondent had been punished enough, rather than that she was satisfied that it was not appropriate to impose any punishment (other than nominal punishment) on the respondent. It was also said to be an error in part because the facts of public and peer condemnation and potential job loss subsequent to the commission of the offence could not support the imposition of a non-conviction order. It was put that, to impose a non-conviction order based not on the offence but on the experiences of the respondent subsequent to the offence is not logical or transparent.
8. In my view, there is no such clear line when identifying the matters which may be taken into account when deciding whether to make a non-conviction order. I have referred above to the terms of s 17(2), (3) and (4), and to their collective breadth, even if s 17(3) is confined to extenuating circumstances in which the offence was committed. I do not accept that, as a matter of law, the Magistrate was not entitled to take into account the matters she did. Neither s 17 nor any other legislative provision so confines her. It is neither legally necessary, nor as a matter of community expectation, inappropriate to look at the consequences of the commission of an offence upon the offender as a matter relevant to the penalty. If those consequences are dramatic, the community would not expect them to be ignored. The present matter provides an example. The respondent has lost, and possibly forever, the career she most wanted to pursue in life. There was some evidence that her gross earnings had thereby dropped by some $25,000 in her current position. In a colloquial sense, and that is the sense in which in my view certain of the sentencing remarks are to be understood, the Magistrate looked at those consequences (which she encapsulated with the word "punishment") in deciding whether the criteria were established so that, if the Magistrate considered it appropriate, a non-conviction order could be made.
9. I do not consider the Magistrate's precise forms of expression in ex tempore sentencing remarks demonstrate that her Honour misunderstood her function or decided that she should not impose a sentence or punishment for the serious offence. To the contrary, in my view, the Magistrate recognised the seriousness of the offence and the need to impose an appropriate punishment. Her Honour then identified, and weighed up, a number of matters which led her to the view that a non-conviction order was both available as a sentencing option and was appropriate. I do not think her processes demonstrate any error of law in the manner contended for.
10. Finally, it is necessary to step back and to form a view whether, notwithstanding the Magistrate taking apparently proper steps in the assessment of the sentence and having regard to matters to which she was entitled to have regard, her discretion so miscarried in an unspecified way that the sentence is manifestly inadequate.
11. I do not think that the sentence imposed is manifestly inadequate. In my view, it was a sentencing option reasonably available to the Magistrate. She has appreciated and taken into account the seriousness of the offence, in its particular circumstances. She has considered the circumstances in which the offence occurred. She has considered the effect upon the respondent by reason of her having made such a mistake in her life. She has considered whether the respondent is remorseful. She has taken into account the need for both general or community deterrence and specific deterrence of the respondent. A number of those matters are addressed in a little more detail above.
12. Accordingly, in my judgment, the appeal should be dismissed. It is necessary so that the order of the Magistrate concerning the required undertaking now operate from the date of this judgment for a period of 12 months, but in its terms her Honour's orders simply now are re-enlivened.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitor for the Appellant: Director of Public Prosecutions