CRIMINAL LAW - sentencing - relevant considerations - s 33 Crimes (Sentencing) Act 2005 (ACT) - reasons for decision - use of victim impact statements

JUDICIAL REVIEW - refusal to adjourn to receive further evidence - denial of natural justice

Crimes (Sentencing Administration) Act 2005 (ACT)

Crimes Act 1900 (ACT), ss 19B, 26, 556A

Evidence Act 1995 (Cth) ss 4(1), 4(2), 190

Criminal Law (Sentencing) Act 1988 (SA), s 6

Sentencing Act 1995 (WA), s 15

Sentencing Act 1997 (Tas), s 81

Crimes (Sentencing) Act 2005 (ACT), ss 17, 17(3)(a)-(c), 17(4), 33, 33(1)(o), 33(1)(r), 36(3)(c), 35(1)(b), 55(3)(r)

Magistrates Court Act 1930 (ACT), s 214(4)

Crimes Act 1914 (Cth), s 19B, 19B(1)(b)(i)-(iii)

Weinberg M, "The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases" [1978] MelbULawRw 5; (1978) 11 MULR 408

Ashworth A "Victim Impact Statements and Sentencing" [1993] Crim LR 498

Chalmers J, Duff P and Leverick F "Victim Impact Statements: Can Work, Do Work (For Those Who Bother to Make Them)" [2007] Crim LR 360

Flatman G and Bogaric M, "The Victim and the Prosecutor: the Relevance of Victims in Prosecution Decision Making" [2001] DeakinLawRw 12; (2001) 6 Deakin L Rev 238

Yassin v Williams [2007] WASC 8

R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413

R v Reid [1999] NSWCCA 258

R v Meier (unreported, NSWCCA, Gleeson CJ, Dowd and Hidden JJ, 21 May 1996)

R v Storey [1998] 1 VR 359

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Capobianco [1978] 20 ACTR 29

R v Bell [2005] ACTSC 123

Hamilton v Littlejohn [2006] TASSC 109

Bennett v Coombs [2007] TASSC 53

Sullivan v Department of Transport (1978) 20 ALR 323

Director of Public Prosecutions (NSW) v Ozakca and Anor [2006] NSWSC 1425; (2006) 68 NSWLR 325

Cropper v Smith (1884) 26 Ch D 700

Cross v Police [2001] SASC 47

Acuthan v Coates (1986) 6 NSWLR 472

Mifsud v Campbell (1991) 21 NSWLR 725

Szewczuk v Police [2001] SASC 223

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Carpenter v Purcell [2008] ACTSC 34

Kent v Arley [2007] ACTSC 66

Federal Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568

Lumby v Cooper [2008] ACTSC 53

2. The sentence of the Learned Magistrate imposed on 19 November 2008 be set aside.

3. In lieu thereof, that Mr Shamsuddin Talukder be found guilty of the offence that he, in the Australian Capital Territory, on 9 June 2008 did assault his wife.

4. Without entering a conviction, Mr Shamsuddin Talukder be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for twelve months.

1. Shamsuddin Talukder appeals against the sentence imposed by a Magistrate for an offence of common assault contrary to s 26 of the Crimes Act 1900 (ACT) to which Mr Talukder pleaded guilty. That section provides for a maximum penalty of two years imprisonment.

2. The Learned Sentencing Magistrate convicted Mr Talukder and made a good behaviour order for twelve months.

3. The offence occurred on 9 June 2008 when Mr Talukder assaulted his wife of eight years, thus amounting to an offence of family violence.

4. The offence occurred at the family's home when Mr Talukder was preparing breakfast for the two children of the household, a two year-old daughter and a twelve year-old son. The victim was eating breakfast. An argument arose about what the boy was having for breakfast and it then escalated, with both adults becoming verbally abusive to each other.

5. The boy stepped between them but was pushed away by Mr Talukder. He then grabbed his wife by the hair, pulled her into the bedroom and threw her on the bed. She called Mr Talukder's mother a prostitute and he twisted her arm up behind her back and slapped her face several times.

6. The police were called and Mr Talukder made admissions. He stated "I am not proud of what I have done, I do regret it, but it was done in pure rage. She was under my nerves the way she made comments about my parents' family and that, that is the only way I could see it stop."

7. Mr Talukder was arrested and released on bail the next day, spending about 24 hours in custody.

8. Mr Talukder pleaded guilty at an early stage. That is to say, he was represented by a duty lawyer the day after his arrest when he was in custody and he was granted bail and the matter was adjourned for the usual three weeks. There was then an appearance before the Registrar shortly after that to vary the bail conditions under which he had been released but the adjourned date was otherwise confirmed. On this adjourned date he pleaded guilty, though it was noted that there would need to be a hearing to determine a dispute as to the facts.

9. The matter was then adjourned to 23 July 2008 and on that day adjourned to 6 August 2008. It was again adjourned to 20 August 2008 and finally listed for hearing on 19 November 2008. It is not clear why so many adjournments were required; it may be that there were negotiations about the statement of facts, but I was not provided with any explanation. In any event, it was listed for a hearing, presumably to determine the dispute as to facts, for two hours on the November date.

10. On 19 November 2008, Mr P Bevan appeared for Mr Talukder and confirmed to the court that Mr Talukder adhered to his plea of guilty.

11. When the matter was called on, the prosecutor informed the court that the facts had now been agreed and that there was no longer a dispute about the facts. The prosecutor then sought a short adjournment "to talk over a few things with Mr Bevan." The adjournment was immediately granted, though the proceedings did not resume until about a quarter-of-an-hour later.

12. The agreed statement of facts, which I have summarised above, was tendered without objection and it was noted that Mr Talukder had no prior criminal record.

• a report from Relationships Australia, confirming that Mr Talukder had on his own initiative sourced an anger management course, attended a "precourse interview," where he admitted responsibility for his actions, and registered and paid for an initial six week Anger Management for Men course and attended all sessions to the date of the report.
• A letter from a person who has known him for seven years, including three years as his landlord, who stated that the offence was "out of character" and that in the time she had known him, he had never before acted in this way. She reported that "this incident has been a wake-up call for him and he takes the matter very seriously". She further stated that he had "expressed his sincere regret ... and assured me that it is unacceptable and will not happen again." She wrote that she believed it was an isolated incident and had no hesitation in writing the reference.
• A letter from the victim. In this letter, Mr Talukder's wife wrote that she accepted his apology. They had discussed the matter at length and he had promised never to react in that way again. She confirmed that it was out of character and she accepted that he understood the seriousness of the incident. She also noted that a criminal record would hamper his job application and migration process "that will infact [sic] directly affect us as a family."

1. The prosecutor indicated that he had seen the documents and had no objection to their tender. Thus, the prosecutor was aware of the issues raised in those documents. It is always good practice to supply such material to the prosecution in advance so that any problems can be addressed before the hearing. It is, of course, not always possible.
2. A further document was also tendered from the Office for Children, Youth and Family Support. It apparently conflicted with the report from Relationships Australia and was withdrawn. It is not with the appeal papers and was not taken into account by the Learned Magistrate.
3. Mr Bevan then commenced his submissions on the plea in mitigation. He made a number of statements of fact. This is common in sentencing proceedings, especially in the Magistrates Court. While not every list in the Magistrates Court is as congested as those described in the footnote to the judgment of Blaxell J in Yassin v Williams [2007] WASC 8 at [31]- [34], the work of a busy court such as the ACT Magistrates Court could not be completed were this not the usual way of proceeding.
4. To understand the process it is convenient to start with the statute. Section 4(1) of the Evidence Act 1995 (Cth) (Evidence Act) applies the Evidence Act to all proceedings in ACT Courts, but s 4(2) provides:

(2) If such a proceeding relates to sentencing:

(a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and

(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters - the direction has effect accordingly.

18. This does not mean, however, that no rules apply to the presentation of material to a judicial officer at sentencing. It is not the case that, as in some other jurisdictions, the court may inform itself in such manner as it thinks fit: Criminal Law (Sentencing) Act 1988 (SA), s 6; Sentencing Act 1995 (WA), s 15; Sentencing Act (NT), s 104; Sentencing Act 1997 (Tas), s 81.

19. The consequence of the Evidence Act not applying is that the common law of evidence applies. As Giles JA (with whom Levine and Sperling JJ agreed) said in R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413 at 428:

What I have said is not to deny that the sentencing judge should be fully informed, or that desirable practices as they have developed should not continue. In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies.

20. Of course, when assertions of fact are made "from the bar table", they become evidence that is admitted unless there is an objection to it. This accords with the general approach that in relation to evidence, not admissible means "not admissible over objection": R v Reid [1999] NSWCCA 258 at [5]. As Gleeson CJ said in R v Meier (unreported, NSWCCA, Gleeson CJ, Dowd and Hidden JJ, 21 May 1996) at 19: "Indeed, as a practical matter, much of the evidence given at criminal or civil trials is technically inadmissible. It is received because nobody has an interest to object to it".

21. The notion of waiver of the rules of evidence is dealt with in s 190 of the Evidence Act. In this case, however, where that Act does not apply, it is dealt with by the common law. That has been the subject of careful consideration by Mr M Weinberg, "The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases" [1978] MelbULawRw 5; (1978) 11 MULR 408. It was there concluded after a survey of the recent cases that although the general assumption was that failure to object to inadmissible evidence in criminal cases does not constitute waiver, at least so as to debar an appeal point being taken, there was a line of conflicting authority; R v Reid would appear to be a more recent strong conflicting view in addition.

22. I do not have to, and do not propose to, resolve this issue. It seems to me that in sentencing proceedings judicial officers are entitled to rely on assertions of matters, including matters of fact, made from the bar table unless they are challenged. As was said by Winneke P, Brooking and Hayne JJA and Southwell AJA in R v Storey [1998] 1 VR 359 at 371:

Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence.

23. It is clear now that where there are disputed matters on sentence, the prosecution is obliged to prove such matters beyond reasonable doubt and as to the facts of the offence and circumstances of aggravation, and the defence to prove matters of mitigation on the balance of probabilities: R v Storey; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. That only means that matters which are asserted by either party need to be proven by strictly admissible evidence or to that standard of proof in a sentencing proceeding only where they are challenged. This seems to have been accepted in this jurisdiction in R v Capobianco [1978] 20 ACTR 29 at 30-1.

24. Thus, defence counsel can be reasonably confident that appropriate submissions, including assertions of fact, can be made from the bar table and will be accepted by the court and relied upon in the sentence unless challenged, either by the prosecution or the court. Of course, this leaves as somewhat flexible the extent to which such assertions may go before a challenge would be expected and for which defence counsel (or, mutatis mutandis, prosecutors) should be ready to prove in the usual way.

25. This approach is clearly recognised in the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) where it frequently refers to "information" being received or relied on by the court as distinct from "evidence". See, for example, ss 36(3)(c) and 35(1)(b).

26. In this case, the proceedings were conducted in a relatively conventional way. Mr Bevan submitted that Mr Talukder offered no excuse for his behaviour, that he was addressing the issues that gave rise to it by attending the anger management course and there were demonstrated steps towards rehabilitation.

27. He submitted that he was a 34 year old man with no criminal convictions. He met his wife in 1989 in Bangladesh (where he was apparently born) and they went to college together. They married and came to Australia in 2000. Since arriving he has worked for a national retail company as a manager until January 2009 when he joined a bank as a personal lender.

28. The following exchange, which founds the first ground of appeal, then occurred:

MR BEVAN: And the whole family wants to move to Canada obviously because there's some family unit over there, and it's my submission your Honour that a conviction, if it was recorded, would restrict his access and his family's access, to a new life in Canada.

HIS HONOUR: You do not have any evidence of that Mr Bevan.

MR BEVAN: Well, I had evidence of his application, your Honour.

HIS HONOUR: Yes, but you don't have any - I've no doubt he has made application [sic], but you don't have any evidence for that submission that it may restrict that application.

MR BEVAN: If the matter could be stood down, your Honour, I can obtain that evidence because I've had a similar experience with prior matters.

HIS HONOUR: I am not standing the matter down. Continue Mr Bevan.

MR BEVAN: I am trying to get instructions, your Honour.

HIS HONOUR: Well, you should have had those Mr Bevan. Continue.

MR BEVAN: Well the submission is, your Honour, that the family believes that if there was a criminal conviction they would be restricted in their access to Canada.

Later, Mr Bevan returned to this issue. The transcript records:

MR BEVAN: And it's my submission, your Honour, that there's a belief of the accused and his wife that a criminal conviction would restrict their family's entitlement to move to Canada.

HIS HONOUR: That's their belief.

MR BEVAN: Excuse me?

HIS HONOUR: I said that's their belief.

MR BEVAN: That is their belief and I would ask your Honour, if the matter is stood down I could get evidence to that effect, but that is their belief that a criminal conviction would disentitle him to a working visa for Canada.

HIS HONOUR: I'm against you Mr Bevan.

The Learned Sentencing Magistrate then proceeded to impose the sentence noted above.

29. The second and third ground of appeal arises out of the submissions made by Mr Bevan that the court should proceed by imposing a non-conviction order.

30. In submissions, Mr Bevan referred to s 33 of the Sentencing Act and drew the Learned Magistrate's attention to relevant paragraphs, relying on the counselling Mr Talukder had sought, his remorse, the early plea of guilty and his lack of a criminal record.

31. Mr Bevan sought a non-conviction order under s 17 of the Sentencing Act. His Honour noted the matters referred to above so far as they were encompassed within s 17(3)(a) of the Sentencing Act.

32. There was then a discussion about the seriousness of the offence (s 17(3)(b) of the Sentencing Act). His Honour correctly noted that it was an assault on a female, a domestic violence assault, committed in front of the children. Such offences are rightly regarded as serious. As Higgins CJ said in R v Bell [2005] ACTSC 123 at [30]- [31]:

1. It is true to say that most assaults on women are at the hands of their partners or ex-partners. It is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred.
2. I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded.

33. As noted above, Mr Talukder's wife wrote a letter of support, stating that the incident was out of character and that a conviction could hamper the "migration process" and that this would affect the family.

34. It was submitted by Mr Bevan that the refusal by the Learned Sentencing Magistrate to permit the matter to be stood down was a failure to provide procedural fairness.

35. I note that what was sought by Mr Bevan was that the matter be "stood down". While that is, of course, seeking an adjournment, I accept that what this means and is commonly accepted to mean is that the adjournment is sought not to another day but to sometime later the same day, perhaps only ten or fifteen minutes later.

36. Mr Bevan submitted that what he intended to do was to go back to his office, which was relatively close to the court, and print off from his computer material from the High Commission of Canada about the relevant migration regulations of Canada. That would have taken certainly less than half an hour.

37. On the appeal, Mr Bevan read an affidavit of Mr Talukder to which was annexed that material. No objection was taken to that affidavit, or the admissibility of the material, or the appeal. I received it under s 214(4) of the Magistrates Court Act 1930 (ACT). There was no reason to suppose that it would have been objected to before the Learned Sentencing Magistrate.

38. It is true that an appeal court will be very hesitant before interfering with a discretionary decision of a magistrate, especially on a matter of procedure. Nevertheless, there are occasions when it is appropriate to do so. In this regard, I gratefully adopt what was said by Underwood CJ in Hamilton v Littlejohn [2006] TASSC 109 at [17]- [22]:

1. It is, of course, trite law that courts are reluctant to entertain appellate review of an order made in the exercise of the judicial discretion. It suffices to simply refer to Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 and House v R [1936] HCA 40; (1936) 55 CLR 499. With respect to the exercise of the discretion to grant or refuse an application for an adjournment, the New South Wales Court of Appeal expressed the view in Cucu v District Court of New South Wales (1994) 73 A Crim R 240 at 246 that, 'It is rare that a court such as this either in appeal or in judicial review will disturb the decision to grant or refuse an adjournment'. However, it is clear that this is such a rare case and that error infected the exercise of the learned magistrate's discretion.
2. The principles which should govern appellate review of the exercise of a discretion to grant or refuse an adjournment, were stated in these terms by Brennan J (as he then was), Deane and McHugh JJ, in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 628-629:

In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. (See, for example, Walker v Walker [1967] 1 WLR 327, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch [1981] HCA 56; (1981) 55 ALJR 701, at 703; [1981] HCA 56; 37 ALR 55, at 558-9). Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.

...

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.

1. At 631, their Honours added, 'It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings'.
2. Those passages must be read in the light of two matters. First, the appellant Sali was in a financially embarrassed position and attempting to stave off proceedings for the sequestration of his estate. Second, in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, Dawson, Gaudron and McHugh JJ, said at 154:

It may be said at once that in the passage which we have cited from Sali v SPC Ltd [relating to case management] Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.'

1. James v Williams; Ex parte James [1967] Qd R 496 was a case of appellate review of a refusal to grant an adjournment of the hearing of a complaint in circumstances very similar to the present matter, except that in James_, the defendant sought an order that the case be dismissed when the prosecution was not ready to proceed. Hart J said, at 501-502:_

If a defendant who has been served with a summons to appear on a certain day attends at Court on that day ready to answer the complaint, and the complainant is not then ready to proceed, then, if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant - the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged.'

1. As Bowen LJ observed in Cropper v Smith (1884) 26 Ch D 700 at 710, 'Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy ...'.

39. His Honour repeated these remarks in Bennett v Coombs [2007] TASSC 53.

40. There is, however, a further aspect of this matter which was relied upon by Mr Talukder. Mr Bevan further submitted that the effect of the denial of the short adjournment was that Mr Talukder was denied natural justice. In this, he relied on what was said by Deane J (with whom Fisher J relevantly agreed) in Sullivan v Department of Transport (1978) 20 ALR 323. At 343, his Honour said:

A refusal to grant an adjournment can constitute a failure to give a party to the proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

41. As Rothman J commented on this passage in Director of Public Prosecutions (NSW) v Ozakca and Anor [2006] NSWSC 1425; (2006) 68 NSWLR 325 at 328:

In circumstances described in the forgoing passage, the refusal of an adjournment takes on a different character from the exercise of a discretion and, in such circumstances, is a denial of natural justice requiring different considerations than a simple exercise of discretion. In the instant proceedings the magistrate refused the adjournment application in circumstances where his major consideration was case management.

42. Clearly here the issue of migration status so far as relocation to Canada was the major concern. The family were proposing to go and wanted to go to Canada as migrants and the material before the Learned Sentencing Magistrate was that there were reasonable family reasons for that decision. It was also clear that there was a reconciliation between Mr Talukder and his wife that reinforced that the decision to migrate to Canada was a joint one.

43. The decision on the application for an adjournment was not the subject of reasons. That is perhaps not entirely unusual in respect of such a decision, but there was not even any debate about it so that the rationale motivating the refusal can be gleaned. Thus, it cannot be seen how interests opposed to the granting of the adjournment were identified and then weighed so as to justify shutting Mr Talukder out from making the submissions he wished to make.

44. As Underwood CJ noted in Hamilton v Littlejohn, a court is entitled to consider its list, the other litigants and court resources. In this case, however, the matter was listed for a disputed facts hearing for two hours. The dispute had disappeared. The hearing ultimately took 34 minutes, including the 14 minute adjournment. It is difficult to see how listing considerations could have justified the refusal.

45. I note, too, that the prosecution sought and was granted an adjournment with little explanation other than "to talk over a few things with Mr Bevan". The Learned Sentencing Magistrate did not even seek Mr Bevan's views on that application before granting it. It is hard to see why one application should be granted and the other refused.

46. The Learned Sentencing Magistrate did not seek the views of the prosecutor on the application by Mr Bevan. Thus, it cannot be said that there was any prejudice to the prosecution which justified the refusal.

47. It is true, as was submitted by the respondent, who was ably represented by Mr J Hiscox, that Mr Bevan had over four and a half months within which to collect the necessary evidence. Certainly, Mr Bevan could be criticised for not having the thoughtfulness and preparedness to have the documents to produce with him which could clearly have been easily and quickly accessed.

48. At one level the months of time for preparation is irrelevant. If one believes that all one needs to do is to make an oral submission, as, no doubt, often properly and reasonably occurs at least in the Magistrates Court, then the time becomes irrelevant because one does not consider one needs to take the particular step.

49. On the other hand, while it is not hard to accept the possibility that countries might have migration restrictions for those with a criminal record, it is not enough to make such a submission; there needs to be at least a clear connection with the actual situation. The court should not be deflected from imposing what would otherwise be a proper sentence simply because of a possibility of that generality.

50. Nevertheless, as Bowen LJ observed in Cropper v Smith (1884) 26 Ch D 700 at 710, "[c]ourts do not exist for the sake of discipline." It is in general undesirable that a litigant should be denied the opportunity of putting his or her case at its highest because of the failure of a lawyer representing them, if it can be cured without prejudice to the court or other parties.

51. In my view, the Learned Magistrate erred in refusing to stand the matter down to permit the material tendered to me on appeal to be produced and taken into account.

52. It was submitted that the Learned Sentencing Magistrate did not give proper weight to mitigating factors and that his Honour failed to consider s 33 of the Sentencing Act.

53. These can conveniently be dealt with together.

54. The reasons for sentence pronounced by the Learned Sentencing Magistrate are brief, as is not inappropriate. They were as follows:

HIS HONOUR: I record a conviction. In the circumstances you're to sign an undertaking for a period of twelve months to comply with a condition to give security in the sum of $500 to be of good behaviour for that period of twelve months.

In my view, the seriousness of the offence, that is domestic violence, disentitles a person to - violence committed in front of the children, and in a fit of rage in the circumstances in which it was committed that is pushing his son out of the way so that he can get at the victim, grabbing the victim by the hair causing her breakfast to fall to the floor, pulling her to the bedroom, throwing her on a bed, slapping her to the face several times.

The reason I have simply given him a good behaviour bond for a period of twelve months is because he entered a plea of guilty on the third mention of this matter, that is on 25 June 2008, that he spent 24 hours in custody and that he has attempted to remedy a defect in his character, that is not responding to provocation with violence in the home.

55. As can be seen, there is no reference to many of the matters to which one would consider that the Learned Sentencing Magistrate would be bound to have take into account: Mr Talukder's prior good character and the support of his family.

56. Mr Bevan submitted, too, that his Honour had not considered the "demonstrated steps taken towards rehabilitation". That is, however, not correct for the last reference to attempts to remedy "a defect on his character" is clearly a reference to that.

57. Mr Bevan further submitted that his Honour had not considered two paragraphs of s 33(1) of the Sentencing Act, namely the following:

(o) the probable effect that any sentence or order under consideration would have on any of the offender's family or dependants;

...

(r) whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender.

58. That section makes it mandatory for the court to consider these matters so far as they "are relevant and known to the court".

59. It is true that there was no reference to either of these matters in the reasons for sentence of the Learned Sentencing Magistrate. There was material about each of them before the court.

60. There is a tension in the obligation of a sentencer to give reasons. On the one hand, it has to be accepted that in busy courts, such as those over which Magistrates usually preside, a degree of practicality must limit what can be said. On the other hand, a person to be sentenced is entitled to know the reasons for the sentence and, in particular, the view of the sentencer upon important or significant submissions made by him or her or on his or her behalf.

61. Thus, in Cross v Police [2001] SASC 47, Olsson J noted (at [21]):

It is important not to be unduly critical and wise after the event in relation to busy magistrates who have to grapple with very lengthy lists on a day to day basis. However, I am bound to comment that the remarks as to penalty in this case were, with respect, so inadequate that it is really impossible to discern the basis upon which the learned magistrate arrived at the sentence which he imposed.

62. Similarly, an appeal court should not try and construe the unedited and uncorrected transcript of ex tempore remarks in a busy magistrates court as if it were a document to be construed strictly: Acuthan v Coates (1986) 6 NSWLR 472 at 479. It seems to me that this approach also permits some account to be taken of the course of submissions and the response of the sentencer to those.

63. Thus, as Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:

Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires.

64. Nevertheless, Lander J, in Szewczuk v Police [2001] SASC 223, set out helpfully what is to be expected in reasons for sentence. His Honour said (at [32]-[33]):

The reasons perform at least two functions. First they explain to the person upon whom the sentence is being imposed the reasons why the particular sentence has been selected in the exercise of the sentencing discretion. Secondly the reasons allow those advising the offender and, if necessary, an appeal court to review the sentencing discretion. For both those reasons the sentencing remarks must be transparent so that the reasoning process which underlies the exercise of the sentencing discretion can be understood and reviewed.

The Magistrate should record the basic facts upon which the sentence is to be passed. The sentencing remarks should indicate the Court's view of the gravity of the criminality. They should indicate those matters personal to the offender which have been weighed in the exercise of the sentencing discretion. If the sentence is imposed on an offender's plea of guilty, then the sentencing remarks should indicate that that plea has or has not been taken into account and has been viewed or not viewed as some evidence of contrition or remorse. The sentencing remarks should also indicate, if the plea has been accepted as evidence of contrition and remorse, what discount has been given for that plea. Where the person is to be sentenced to imprisonment, whether immediate or suspended, the sentencing remarks should indicate why it is that imprisonment has been imposed...

65. In this case, it is clear from the exchange between bench and counsel during the submissions that the Learned Sentencing Magistrate had heard the submissions about good character and understood it. Indeed, in the exchange, in response to Mr Bevan's reference to good character, his Honour said "[y]es, that's entitled to be taken into account for that" and then later repeated "34 years of age, has no prior convictions." His Honour immediately followed that with a reference to the seriousness of the offence and the submissions went into that area.

66. In my view, this ground is finely balanced. The Learned Sentencing Magistrate did not follow what might be regarded as the desirable form of reasons for sentence but did, if the whole of the submissions and reasons are taken into account, indicate the considerations that motivated the sentence.

67. It should also be noted that the sentence would appear to be within range. Indeed, there was no ground of appeal that the sentence was manifestly excessive. That another sentence would be appropriate, even if it is one I would have imposed, cannot justify interference: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-2.

68. I also note that, even where an error is made by the sentencer, a court will not intervene if the correction of the error cannot affect the sentence then to be imposed: Carpenter v Purcell [2008] ACTSC 34 at [11].

69. Accordingly, had these two grounds been the only grounds of appeal, I would have dismissed the appeal.

70. In the event, I consider that the failure to stand the appeal down for a short period to obtain the material to which I have referred was a significant error of law justifying the setting aside of the sentence.

71. It now falls on me to re-sentence Mr Talukder. In doing so, I have regard to the following matters:

(c) he pleaded guilty at or about the earliest time that could be expected and acknowledged his guilt to the police who attended the scene of the crime;

(d) he voluntarily submitted himself to a rehabilitation regime which was designed to address the anger which led to the incident;

(e) he appears to have insight into his behaviour and has expressed remorse;

(f) he has a positive good character, attested to by his wife, the victim of the assault, and a friend who has known him for a reasonably long time;

(g) there was some element of escalation or provocation in the incident from the victim's point of view which takes it out of the realm of unprovoked, mindless or vicious violence, though it in no way justifies the violence used; and

72. On the other hand, the following matters must also be taken into account:

(i) it was an assault of a domestic violence nature;

(ii) it involved a series of batteries, not just a single slap;

(iii) the assault took place in front of the children of the household.

73. There are two remaining issues. The first is that of the migration process to Canada. It was accepted, as I do, that Mr Talukder had applied in 2006 for migration to Canada. It takes about three years to process. He was at the stage where he has to take an English language test and then a criminal record check and then the application is processed apparently to a conclusion.

74. The material produced shows that common convictions make a person "inadmissible" to Canada. Drink-driving with a blood alcohol reading of 0.081% or above renders an applicant inadmissible. The material continues:

Other common convictions that may make a person inadmissible to Canada are: reckless or dangerous driving, common assault, street racing, hinder or resist a police officer in the execution of duty, possession, supply, trafficking of drugs (including cannabis) and shoplifting (theft), fraud or criminal damage, to name a few.

I was charged with an offence. However the court outcome was that 'no conviction was recorded'. Can I enter Canada as a visitor?

Yes.

...

If I am inadmissible, can I just go for a visit/holiday?

No, if a person is determined to be inadmissible to Canada they are unable to enter Canada as a visitor, student, worker or immigrant until such time as relief is granted.

How can I get relief (approval to travel) is I am criminally inadmissible?

After a prescribed period of five (5) years has passed since the completion of any imposed sentence (and there have been no other convictions that affect your admissibility) an application for Criminal Rehabilitation may be lodged. If approved, Rehabilitation will overcome the inadmissibility permanently.

75. It is true that in general terms, a court does not take account of a person's status as an immigrant and the possibility of deportation when considering sentence. See, for a recent example, Kent v Arley [2007] ACTSC 66 at [8]- [10].

76. This is somewhat different, however. This is not a situation where the sentence will determine what steps the Australian migration authorities will take. This is put on the basis that the family, which wishes to relocate, will be prevented from doing so because of a conviction.

77. Usually, these days, authorities are sensitive to the fact that a non-conviction order still recognises a finding of guilt in relation to the offence. That, however, is a distinction that the Canadian authorities are apparently still yet to make and recognise. There are of course good arguments for this, since the court's response is an indication of how it views the offence, the circumstances under which it was committed and/or the circumstances of the offender.

78. It was pointed out by Mr Hiscox that the extract shows that a conviction for assault does not necessarily prevent admissibility. In my view, the material makes it clear there is a real likelihood that in a case of domestic violence, Mr Talukder would be refused admission. That would affect his family adversely and I can and do take that into account.

79. The other matter is the view expressed by Mr Talukder's wife. That is problematic.

80. Mr Bevan suggested that the letter from Mr Talukder's wife was like a Victim Impact Statement. That does not help much for it cannot be correct that an offender should receive a lighter sentence because he offends against a forgiving victim. As Professor Ashworth wrote in "Victim Impact Statements and Sentencing" [1993] Crim LR 498 at 506:

Among the substantive questions is the issue of chance: is it right that a particular offender should receive a more severe sentence because his victim suffered abnormally serious after-effects, or that another offender should receive a much lower sentence because his victim was counselled successfully and apparently recovered quickly? (Footnote omitted).

81. See also James Chalmers, Peter Duff and Fiona Leverick "Victim Impact Statements: Can Work, Do Work (For Those Who Bother to Make Them)" [2007] Crim LR 360; and G Flatman and M Bogaric, "The Victim and the Prosecutor: the Relevance of Victims in Prosecution Decision Making" [2001] DeakinLawRw 12; (2001) 6 Deakin L Rev 238.

82. In my view, there is a great danger in putting a victim of domestic violence in the position where they are seen to have some power to influence a sentence. This is often likely to be an intolerable choice between the bonds of affection which often persist despite the violence and their need for protection against recurrence and for the offender to be held accountable.

83. Thus, the courts need to approach letters such as was written here in a very careful way. In my view, this letter can be accepted for the following:

(i) it shows that Mr Talukder has had a previous good character;

(ii) it shows that this incident was an one-off occurrence and not indicative of ongoing or repeated violence;

(iii) it confirms his participation in the anger management course; and

(iv) it also confirms the effect on the family if Mr Talukder is unable to migrate to Canada.

84. While it also shows that there is reconciliation between Mr Talukder and his wife, that is a matter which has to be treated with caution for the reasons set out above.

85. Unlike s 19B of the Crimes Act 1914 (Cth), the Commonwealth non-conviction sentence regime, s 17 of the Sentencing Act does not require the two-stage process that was described in Federal Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568.

17 Non-conviction orders - general

(1) This section applies if an offender is found guilty of an offence.

(2) 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) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b) a good behaviour order under section 13.

Note_: A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87)._

(3) In deciding whether to make a non conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(b) the seriousness of the offence;

(c) any extenuating circumstances in which the offence was committed.

(4) The court may also consider anything else the court considers relevant.

87. The structure is quite different and while the contents of s 17(3)(a), (b) and (c) of the Sentencing Act are the same as s 19B(1)(b)(i), (ii) and (iii) in the Crimes Act 1914 (Cth), in the latter, these are the only matters to be considered in deciding whether such an order is to be made and there is no equivalent to s 17(4).

88. Thus, decisions on s 19B and on s 556A of the Crimes Act 1900 (ACT), now repealed, will not necessarily assist in deciding whether to proceed under s 17 of the Sentencing Act.

89. This also means that the Sentencing Act provides a consistency between s 17 and s 33(1)(r) or the latter specifically requires a court to consider whether a conviction would cause particular hardship on the offender. Thus, as Penfold J set out in Lumby v Cooper [2008] ACTSC 53, a court can consider the significance of a conviction on employment or employment prospects, even though none of the matters set out in s 17(3) are activated.

90. While in Kent v Arley, Connolly J also considered that the failure of the appellant's counsel to ask for an order under s 17 was a legitimate error, I have some doubts about that decision, but at least it shows the need for careful consideration of the option.

91. Penfold J in Lumby v Cooper at [38] referred to the need to consider all the matters in s 17(3). I do so.

92. Mr Talukder is 34 years old with no prior convictions and has a good character attested to by witnesses. There is nothing remarkable about his health or mental condition.

93. The offence is a serious one in that it is an offence which the community rightly condemns and is an offence against an often vulnerable group. It is, however, an offence at the lower end of the criminal calendar and although this was a serious example of the offence, its seriousness does not, in my view, outweigh all the other considerations.

94. The only extenuating circumstance is that initially the victim was apparently equally as abusive as Mr Talukder and later she made a serious and unfortunate attack on Mr Talukder's family. That does not excuse the violence but explains perhaps the slapping and provides some marginal extenuation.

95. Taken alone, these matters would not justify a non-conviction order. I do consider, however, that Mr Talukder's immediate engagement in a rehabilitation programme and the risk to the family that their immigration plans may be thwarted, are relevant factors.

96. I also consider, in the terms of s 33(1)(r) that the effect of a conviction would be to impose a significant hardship because of the likely effect on the family's immigration plans.

97. I also take into account the early plea of guilty and the early confession of the offence to the investigating officers. Taking all these matters together, I consider that an order under s 17 is justified.

(2) That the sentence of the Learned Magistrate imposed on 19 November 2008 be set aside.

(3) In lieu thereof, that Mr Shamsuddin Talukder be found guilty of the offence that he, in the Australian Capital Territory, on 9 June 2008 did assault his wife.

(4) That without entering a conviction, Mr Shamsuddin Talukder be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for twelve months.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: Director of Public Prosecutions (ACT)