• Criminal Law Consolidation Act 1935 (SA), ss 15, 39(1);
• Criminal Law (Sentencing) Act 1988 (SA), ss 10, 16, 39;
• Thomas Principles of Sentencing 2nd edition 1979, referred to.
• Devries v Australian National Railways Commission (1992-93) 177 CLR 472;
• State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306;
• Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656;
• The Queen v Avgoustinos [1975] 13 SASR 48;
• The Queen v Weaver [1973] 6 SASR 265;
• Taylor v Barr (1987) 135 LSJS 106;
• Vartzokas v Zanker [1989] SASC 1591; (1998-89) 51 SASR 277;
• Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321;
• R v Gray [1977] VR 255;
• R v Richmond [1919] ArgusLawRp 120; [1920] VLR 9, considered.

Counsel: MR K SOETRATMA - Solicitors: CROWN SOLICITORS OFFICE SOUTH AUSTRALIA

Judgment No. [2002] SASC 220

[2002] SASC 220

GRAY J This is an appeal against a conviction and sentence.

The appellant Tayimot William Yengi was charged with assault.[1] He was 19 years of age and had no prior history of offending. He entered a plea of not guilty and the trial proceeded before a learned magistrate ("the magistrate").

Mr Yengi was a member of the Mars Sporting Complex gymnasium. He engaged the victim John Abnett as his personal trainer several months before the offence occurred. The men worked well together. Mr Abnett gave Mr Yengi permission to use the Mars complex's boxing room. Damage was caused to a smoke detector and Mr Abnett was held accountable for the repairs. He tried to recover the cost from Mr Yengi.

On 27 January 2000 Mr Yengi told Mr Abnett that he was not going to pay. Mr Abnett then said that he would no longer work as Mr Yengi's personal trainer. Mr Yengi remained at the gym for about 45 minutes and then left. He later returned requesting his fitness program. A verbal exchange occurred but Mr Abnett gave Mr Yengi the program. Mr Yengi then left. He returned approximately 15 minutes later whilst Mr Abnett was with another client. An altercation occurred, the details of which were disputed. Mr Yengi claimed that he struck Mr Abnett in self-defence.[2] Mr Abnett claimed to be the victim of an unprovoked attack. Mr Abnett suffered bruising to his right eye, marks around his neck and a shoulder injury. He required physiotherapy.

The magistrate summarised the two versions of the incident:

"Mr Abnett claims that the defendant approached in an agitated state with his clenched fists by his side. Mr Abnett had both his hands on the equipment, being the pec deck machine that he was working on with his client...the defendant is alleged to have said 'So you think I'm a pussy John' and the defendant threw a right punch at Mr Abnett. Mr Abnett ducked and avoided the punch, but he was struck by several punches in succession to the head and stomach. He then tried to defend himself by grappling with the defendant. Both tumbled over some gym equipment and ended up in a scuffle on the ground, with both parties punching at each other. Another patron in the gym came over and pulled them apart. Mr Abnett then backed away from the defendant, but the defendant followed Mr Abnett around two pieces of gym equipment. Mr Abnett then ran down the stairs, and locked himself in his office, and called the police. The defendant followed him down the stairs, banged on the glass door to the office, and shouted words to the effect that he was going to kill him.

The defendant admitted returning to the premises and approaching Mr Abnett, who was then working ... on the pec deck machine. He says that he could not believe that their relationship had deteriorated so quickly and just wanted to ... 'Sort it out'. He said that he had no malice and just wanted to talk to Mr Abnett. That as he approached Mr Abnett, he noticed that Mr Abnett had adopted an aggressive stance and the defendant, fearing that he was about to be struck by Mr Abnett, lashed out with his hands in self-defence, and it then quickly developed into a scuffle with both of them tumbling to the ground. He said that Mr Abnett was on top of the defendant and was punching him to the head. Mr Gentle another patron at the gym, came along and pulled Mr Abnett off the defendant, and as he did so the defendant admitted kicking out at Mr Abnett and then getting up and chasing Mr Abnett around two pieces of equipment and down the stairs where Abnett locked himself in his office. The defendant says that Mr Abnett laughed at him which incensed him even more and he banged on the glass mouthing off words to the effect of 'I will fucking kill you'."

Mr Yengi and Mr Abnett gave evidence. Two independent witnesses were called. Their evidence supported Mr Abnett's account. Justin David Gentle had seen Mr Yengi at the gymnasium several times but had not had contact with him previously. He was working out and was aware of the verbal exchange prior to Mr Yengi's return to the gymnasium. He said that he observed Mr Yengi enter in an agitated manner, move towards Mr Abnett and start throwing punches. The men grappled and tumbled to the ground with their arms and legs flailing. Mr Gentle pulled them apart.

Christopher Timothy MacDonald was a patron using the pec deck machine. He had not had any prior dealings with Mr Yengi. He said that he saw Mr Yengi come through the door, walk straight up to Mr Abnett and hit him in the ribs and chest area.

Mr MacDonald and Mr Gentle were adamant that Mr Abnett did not show any aggression towards Mr Yengi prior to being struck. They said that Mr Yengi was the instigator of the aggression.

The magistrate found Mr Yengi guilty as charged. His critical reasoning was as follows:

"The question for me to determine is whether the prosecution has excluded as a reasonable possibility that the defendant genuinely, even if mistakenly, believed that force was necessary and reasonable to defend himself.

Mr Gaite submitted that it was dangerous to rely on the evidence of the prosecution witnesses, as there were inconsistencies between them.

Mr Abnett said that the defendant threw a punch at him, which he avoided by ducking, whereas Mr MacDonald could not remember such a punch but he saw the defendant punch Abnett in the ribs and chest area.

Mr Gentle said that Mr Abnett had a folder in his hands when the defendant approached him, whereas the other witness said that he had nothing in his hands and that his hands were resting on the pec deck machine.

Mr Gentle had Mr Abnett standing in front of the pec deck machine, whereas Mr MacDonald said that he was squatting.

I accept that there were these inconsistencies but, as Mr Gaite submitted, things happened quickly and human perceptions in those circumstances can be fallible.

To my way of thinking, those sort of inconsistencies are reasonable and are the sort of inconsistencies one would expect from those that are involved in a very volatile and explosive scene where events happen so quickly. It would seem to be nit-picking to the nth degree to demand absolute consistency about everything that occurred.

In the circumstances the fact that there are these sort of inconsistencies in their evidence lends strength to their testimony, given the overall picture that emerged, and also tends to diminish the inference that the witnesses have put their heads together to come up with a consistent version. I have found all the prosecution witnesses to be witnesses of credit in particular Mr Gentle and Mr MacDonald, who were forthright and candid, whereas the defendant's evidence had a ring of fabrication about it.

In my opinion, he is not a witness of truth and I am satisfied beyond reasonable doubt on the basis of the evidence of Mr Abnett and the independent witnesses, Gentle and MacDonald, that the defendant was not genuinely acting in self-defence when he struck out at Mr Abnett."

The magistrate recorded a conviction and imposed a 12 month good behaviour bond.

The appeal was lodged out of time.[3] An extension was not opposed by counsel for the Crown. This court granted an extension and proceeded to hear the merits of the appeal.

Counsel for Mr Yengi accepted that the magistrate posed the correct question when he said that the question for his determination was "whether the Crown has excluded as a reasonable possibility that [Mr Yengi] genuinely, even if mistakenly, believed that force was necessary and reasonable to defend himself". However it was complained that the verdict was unsafe and unsatisfactory. It was said that the magistrate failed to properly weigh and consider certain evidentiary inconsistencies in Mr Abnett's evidence. It was said that the inconsistencies were of such a nature that the Crown could not make out its case.[4] The guilty verdict was not open on the evidence.

The main alleged inconsistency related to the identification of Mr Yengi by Mr Abnett. During evidence in chief, Mr Abnett described the events leading up to the incident. He said:

"A. I was training my client, and my client said to me 'Here he comes again', and I looked over to my right-hand side and I saw the defendant coming up the stairs.

Q. You say the word 'defendant'. Who came up the stairs.

Q. And then you indicated that he said something.

A. Yes, he came at me. I could see him out of corner of my eye. He was about a metre and a half to two metres away from me. I turned around, I saw he had his fists like this, clenched. They were at his side, and he came closer towards me, and he said something to the effect of 'So, do you think I am a pussy John', and he took a swing at me, which I ducked.

A. I was looking at my client, so basically I was standing here looking at my client. I was basically helping my client. He came this way, so basically he came through the doors at the gym. I caught him out the corner of my eye, about a metre and a half, two metres away with me. He was about a metre and a half to two metres away, when I saw he had clenched fists, and he said 'So, do you think I am a pussy John', and he took a swing at me which I ducked.

Q. And then can you remember which direction you ducked from.

A. I ducked, I think I ducked towards my left. I got hit numerous times in the body.

Q. At any time did you indicate to Mr Yengi that you were prepared to fight him.

A. No, not at all. I actually tried, even after he had thrown punches at me, I tried to get him out of the complex, yet again to leave, and he still wouldn't go. He followed me around the two pieces of equipment and chased me down the stairs. He would have got me again if I didn't lock myself in the office. That's the only reason why he didn't get through the door."

In cross-examination Mr Abnett gave the following account:

"Q. You were fairly agitated and aggressive at that moment in time, weren't you.

A. Not at all. I was in the middle of a training session with my client, and that's why the first time when I turned around and saw him come up the stairs, I actually turned back to my client and I was still going through the exercises with him. At that stage I had no idea why he had come back into the gym until I saw him moving towards me out the corner of my eye with clenched fists.

Q. So you say his fists were clenched and they were at his side; is that right.

Q. How far away was he when you made that observation.

A. When I turned around, a metre and a half, two metres away.

Q. You see, when Mr Yengi approached you, when you were at the pec deck, you looked at him in a particular way; didn't you.

A. No, I turned around because I saw somebody coming towards me.

A. Well, I had no idea who it was. I saw him come through the doors, but there were other people in the gym."

Counsel for Mr Yengi submitted that this evidence was inconsistent. Mr Abnett initially said that he recognised Mr Yengi as the assailant but then later said that when he first saw the person he had no idea who he was. It was said that the effect of this inconsistency was that Mr Abnett was not a witness of truth and that his evidence was unreliable. It was complained that the magistrate erred in failing to give sufficient weight to this inconsistency and that this affected his findings of credit. It was also said that given the hostility between the two men, it was reasonable to infer that it was a possibility that Mr Abnett took steps to defend himself in anticipation of an attack. This manifested itself into aggression. Mr Yengi had the relevant belief or alternatively the Crown had not satisfied the onus.

Counsel for the Crown submitted that the magistrate was correct to exercise his discretion to reject Mr Yengi's account and accept Mr Abnett's version. It was said that the magistrate weighed the apparent inconsistencies and found them to be insignificant. Mr Yengi had failed to satisfy the test of proving error on appeal.

It is not clear that the purported inconsistencies were in fact inconsistencies. The precise sequence of events and the timing of Mr Abnett's observations are uncertain. It appears that during examination in chief Mr Abnett's mind was directed to the time when Mr Yengi was walking up the stairs. In cross-examination his mind appears to be addressing the time when the assailant was going through some doors. It is unclear where the stairs were in relation to the doors. Counsel were unable to assist. No view was taken. No photographs of the inside of the gymnasium were tendered. No plan was tendered. It was quite possible that the descriptions were consistent.

During the trial these purported inconsistencies were not raised with Mr Abnett. If counsel for Mr Yengi wanted to challenge the alleged inconsistencies it should have been directly put to Mr Abnett in cross-examination. This would have allowed Mr Abnett to address the suggested inconsistencies and offer an explanation. He was denied this opportunity.

The role of an appellate court in reviewing a trial judge's findings on credibility has promoted much judicial discussion. As Brennan, Gaudron and McHugh JJ said in Devries v Australian National Railways Commission[5]:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use of has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."

These principles were recently discussed in State Rail Authority of New South Wales v Earthline Constructions Pty. Ltd (In Liq)[6]. Kirby J said:

"Appellate judges must necessarily perform their statutory function. They must rehear the matter and form their own conclusions on the evidence recorded at the trial. Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits. Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have."

Kirby J acknowledged the technological and social advances that have increased an appellate court's ability to assess a witness's credibility. However he continued at (330):

"None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing."

On appeal it is not enough to criticise an apparent conflict in the evidence when the witness has not had an opportunity to comment. It is to be recalled that two independent witnesses corroborated Mr Abnett's account. Their evidence directly refuted any statutory defence. The magistrate was entitled to accept and act on that evidence together with the evidence of Mr Abnett. The magistrate had the advantage of seeing and hearing the witnesses. Counsel for Mr Yengi has not shown that the magistrate has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. Having satisfied himself that the Crown had excluded the reasonable possibility that Mr Yengi genuinely or mistakenly believed that the force used was necessary and reasonable to defend himself, the magistrate was entitled to find that Mr Yengi was the aggressor and that he initiated the incident. It followed that a defbence under section 15 of the Criminal Law Consolidation Act 1935 (SA) was not established. The magistrate was entitled to find Mr Yengi guilty. His findings were open on the evidence and supported by that evidence. No error has been demonstrated. The appeal against conviction must be dismissed.

"Mr Yengi, I have taken into account the facts as I have found them. I have concluded that you were the aggressor in the circumstances. It is unfortunate that this matter has come to trial and you have really shown no remorse for the incident in question.

I have taken it into account as a very unfortunate circumstance in your life, in that you are a young man, an industrious and enterprising young man, with no history of offending, with a bright future and this is obviously something which is out of character and it has been one of those aberrations of youth. I accept it as that.

I hope that, as Mr Gaite has stated, this has been a valuable lesson to you and that it is unlikely that you will reoffend again and come to the notice of the criminal justice system.

In the circumstances, I have taken into account the submissions made and the fact that Mr Gaite has urged me not to record a conviction. I think that it is appropriate that a conviction be recorded, but I have taken into account your past history, unblemished life, your youth and your future prospects and I think that it is not appropriate for me to consider imposing any severe penalty in the circumstances. However, it is appropriate that a penalty be imposed to remind you that this sort of behaviour and conduct is unacceptable and hopefully that will deter you from any further similar behaviour.

I will release you on a bond in the sum of $100 to be of good behaviour for a period of 12 months."

22. Counsel for Mr Yengi's complaint related to the recording of the conviction. It was said that the magistrate gave too much weight to Mr Yengi's lack of remorse and treated it as an aggravating feature. Counsel further submitted that Mr Yengi was not in a position to express remorse given that he had been found guilty of an offence to which he had pleaded not guilty. It was said that any expression of remorse prior to a finding of guilty could have amounted to an admission and any expression after such a finding would have amounted to a lie or further fabrication.

23. Remorse is compunction or feelings of deep and painful regret for wrongdoing. Remorse is a question of fact. As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Siganto v The Queen:[7]

"In R v Gray[8] the Victorian Court of Criminal Appeal said:

'It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time-wasting or even scurrilous defence'

A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.

The Court of Criminal Appeal took the view that all Angel J was doing, in his reference to the plea of not guilty, was pointing out that the appellant was not entitled to the leniency which ordinarily flows from a plea of guilty. It is proper for a sentencing judge to observe, in a particular case, that circumstances which might otherwise attract leniency are absent. A trial judge's reference to the absence from the case of a matter of mitigation does not mean that the judge is indicating the presence of a circumstance of aggravation. There is no reason to infer that Angel J made the error attributed to him in relation to the plea of not guilty.

Equally well established is the proposition enunciated in Gray. The same proposition is expressed in Thomas, Principles of Sentencing[9] as follows:

'A plea of guilty may properly be treated as a mitigating factor, indicating remorse, and will justify a reduction in the sentence below the level appropriate to the facts of the offence; but the defendant who contests the case against him, while not entitled to that mitigation, may not be penalised for the manner in which his defence has been conducted by the imposition of a sentence above the ceiling fixed by the gravity of the offence.'

In R v Richmond[10] Cussen J explained why a sentencing judge is not entitled to treat, as a circumstance of aggravation, the fact that an offender's testimony has been disbelieved. One reason is that even an innocent person may be deterred from seeking to defend himself or herself if it were the case that rejection of the defence case by a jury may result in an increased sentence. Similar considerations apply to the argument presently under consideration. A sentencing judge is punishing an offender for the crime, not for the conduct of the defence case. "

24. In the present case, the magistrate simply noted that it was unfortunate that the matter had come to trial and that Mr Yengi had really shown no remorse for the incident. This was a reference to the absence of matters in mitigation. It did not indicate that the magistrate had elevated these factors to circumstances of aggravation. This complaint must be rejected.

25. The magistrate utilised section 39 of the Criminal Law (Sentencing) Act 1988 (SA) ("the Sentencing Act") and imposed a bond and a conviction. Counsel for Mr Yengi submitted that when considering whether to impose a conviction the magistrate failed to have regard to the good reason that existed and accordingly failed to exercise his discretion in favour of Mr Yengi.

"(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond -

(ab) to comply with other conditions (if any) included in the bond; and

(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.

(1a) However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).

(2) Where a defendant is discharged under this section -

(a) no fresh prosecution may be commenced in respect of the offence; and

(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event."

Initially it was said that the magistrate should have had utilised section 16 of the Sentencing Act which provides:

"Where a court finds a person guilty of an offence for which it proposes

to impose a fine, a sentence of community service, or both and the

(a) that the defendant is unlikely to commit such an offence again; and

(i) the character, antecedents, age or physical or mental condition of the defendant;

(iii) any other extenuating circumstances, good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction."

However it was later accepted that both sections provided the magistrate with a wide discretion and that it was open to him to exercise his discretion under either section. He chose section 39 in preference to section 16. No error of principle has been demonstrated. Section 39 is perhaps the wider discretion as it allowed the magistrate to impose the bond. This was a sentencing option that was open on the evidence.

The magistrate accepted that Mr Yengi was young with no previous criminal history and that the offence was out of character and an aberration of youth. He accepted that Mr Yengi had a bright future ahead of him and that he was unlikely to re-offend. This was an important observation. In The Queen v Avgoustinos[11] Bray CJ said:

"Indeed, I would say for myself that when a court chooses to dismiss a charge without proceeding to conviction there must be some difference in the weight which should be placed on that order and the weight which should be placed on a conviction without a penalty. Parliament has provided these two alternatives; it must have intended that there should be some difference in effect between them. There is no immediate difference. In either case the defendant leaves the court unscathed. The only difference therefore can be in their respective long-term effects on the defendant's record. "

The magistrate noted that it was inappropriate to impose a severe penalty but said that a penalty was necessary to remind Mr Yengi of the unacceptable nature of his conduct and to deter him from further similar behaviour. The magistrate's decision to impose a bond pursuant to section 39 was entirely appropriate and supported by the evidence.

Section 10 of the Sentencing Act provides that age and rehabilitation are factors which should be given regard to where relevant. In this case the magistrate referred to Mr Yengi's youth but did not specifically address the need to effect his rehabilitation. In The Queen v Weaver[12] in the joint judgment of Bray CJ and Mitchell and Sangster JJ the court emphasised the importance of rehabilitation:

"Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence. "

In Vartzokas v Zanker[13] King CJ said:

"Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measurers precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person."

In Dinsdale v The Queen[14] Gleeson CJ and Hayne J spoke of the appellate court's role in determining whether error in sentencing had occurred. Error was understood as explained in House v The King:

" 'It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred'.

Those principles apply...to...appeals by offenders based upon alleged excessiveness."

The magistrate failed to take into account all relevant considerations. He gave insufficient weight to Mr Yengi's age and the need for his rehabilitation. He did not recognise that Mr Yengi's offending was caused by an inability to control his anger. He did not recognise that Mr Yengi lacked the objectivity needed to understand his behaviour and that he was in need of positive, constructive assistance. The magistrate did not recognise the benefits associated with anger management programs or seek to utilise them as a condition of the bond. He did not recognise that the community was best protected by Mr Yengi's rehabilitation.

The links between anger and violence are being increasingly recognised. South Australia has well developed systems for the delivery of anger management programs. These programs attempt to help attendees develop alternative strategies in the control and expression of angry impulses. They include relaxation training, social skills training and cognitive restructuring. The magistrate failed to have regard to an important rehabilitative option. Accordingly his discretion miscarried. Error has been demonstrated.

This appeal must be allowed. The sentence imposed by the magistrate must be set aside. It is necessary to re-sentence Mr Yengi. It is appropriate for this court to perform that task.

Mr Yengi comes before the court as a first offender. However it was an offence of violence, he was the aggressor and his behaviour resulted in some injury. Mr Yengi must realise that his behaviour was inappropriate and that he will be punished. However regard must also be had to the principles of rehabilitation. The community is best protected from further offending by Mr Yengi's successful rehabilitation. He has not had the benefit of anger management counselling in the past. He is young and until now had an unblemished record. The magistrate found him to be an industrious, enterprising young person with a bright future. He has embarked upon a course of tertiary study and it is a real possibility that that the effects of a conviction would be detrimental to his future employment and long term development. Accordingly it is inappropriate to record a conviction.

The appeal against the finding of guilt is dismissed. The appeal against conviction and sentence is allowed. I order pursuant to section 39 of the Sentencing Act that Mr Yengi be discharged without recording a conviction upon the condition that he enter into a bond in the amount of $500 in the following terms that Mr Yengi:

be of good behaviour and comply with the other conditions of this bond

appear before a court for conviction and sentence for the above offence if he disobeys any of the conditions of this bond

be under the supervision of a community corrections officer for a period of 2 years and obey the lawful directions given to him by the community corrections officer to whom he is assigned for the purposes of supervision

perform 160 hours of community service within 6 months from the date of this bond and obey the lawful directions of the community corrections officer to whom he is assigned for the purposes of community service

participate in course(s) in anger management. Further directions as to the nature and length of those course(s) will be provided by his community corrections officer

report within two working days of having signed this bond, at the officer of the Department for Correctional Services at Adelaide.

"On the 27th day of January, 2000 at Marden in the said State [Tayimot William Yengi] assaulted John William Abnett.

Section 39(1) of the Criminal Law Consolidation Act, 1935 (SA)."

2 Section 15 of the Criminal Law Consolidation Act 1935 (SA) provides:

the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and

the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

(3) For the purposes of this section, a person acts for a defensive purpose if the person acts-

(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.

(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt."

3 he appeal was out of time by some two and a half months. The basis for the extension of time application was that the respondent was not in any way prejudiced by the passage of time. The appellant's solicitor also submitted that late lodgement of the notice of appeal was not the fault of the appellant. In his affidavit of 30 May 2002, the solicitor stated that he did not ensure that the documents were filed in time.

4 Although reference was made at times to general inconsistencies, the submissions did not condescend into particularity except in regard to the matter addressed in these reasons.

6 [1999] HCA 3; (1999) 73 ALJR 306

7 [1998] HCA 74; (1998) 194 CLR 656 at 663-664 and 666

8 [1977] VicRp 27; [1977] VR 225 at 231

10 [1919] ArgusLawRp 120; [1920] VLR 9 at 12

11 [1975] 13 SASR 48 at 49

12 [1973] 6 SASR 265 at 267 - see also Taylor v Barr (1987) 135 LSJS 106 at 110-112

13 [1989] SASC 1591; (1988-89) 51 SASR 277 at 279

14 [2000] HCA 54; (2000) 202 CLR 321 at 324

[1] The information was in the following terms:

"On the 27th day of January, 2000 at Marden in the said State [Tayimot William Yengi] assaulted John William Abnett.

Section 39(1) of the Criminal Law Consolidation Act, 1935 (SA)."

[2] Section 15 of the Criminal Law Consolidation Act 1935 (SA) provides:

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and

(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

(3) For the purposes of this section, a person acts for a defensive purpose if the person acts-

(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.

(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt."

[3] The appeal was out of time by some two and a half months. The basis for the extension of time application was that the respondent was not in any way prejudiced by the passage of time. The appellant's solicitor also submitted that late lodgement of the notice of appeal was not the fault of the appellant. In his affidavit of 30 May 2002, the solicitor stated that he did not ensure that the documents were filed in time.

[4] Although reference was made at times to general inconsistencies, the submissions did not condescend into particularity except in regard to the matter addressed in these reasons.

[6] [1999] HCA 3; (1999) 73 ALJR 306

[7] [1998] HCA 74; (1998) 194 CLR 656 at 663-664 and 666

[8] [1977] VicRp 27; [1977] VR 225 at 231

[10] [1919] ArgusLawRp 120; [1920] VLR 9 at 12

[11] [1975] 13 SASR 48 at 49

[12] [1973] 6 SASR 265 at 267 - see also Taylor v Barr (1987) 135 LSJS 106 at 110-112

[13] [1989] SASC 1591; (1988-89) 51 SASR 277 at 279

[14] [2000] HCA 54; (2000) 202 CLR 321 at 324