KULJIT SINGH SALHAN v POLICE [2024] SASC 106

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE BURTON) MCCRM-23-035031 Appellant: KULJIT SINGH SALHAN Counsel: MR A PANOUSAKIS - Solicitor: SEKHON LAWYERS Respondent: POLICE Counsel: MS L O’DONNELL - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 25/07/2024 File No/s: SCCRM-24-012756 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SALHAN v POLICE [2024] SASC 106 Judgment of the Honourable Justice McDonald (ex tempore) 25 July 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS This is an appeal against a sentence imposed by a Magistrate in the Berri Magistrates Court on 19 March 2024. On this date, the appellant pleaded guilty to one count of aggravated assault causing harm. The Magistrate imposed a bond to be of good behaviour for two years in the sum of $500 as well as recording a conviction for the subject offending. The appellant appeals the Magistrate’s decision on the basis that the Magistrate erred in the exercise of the sentencing discretion by deciding to record a conviction against the appellant. The appellant contends that the recording of a conviction and the consequences that follow, including the appellant’s prospects of employment and application for Australian citizenship, result in a disproportionate outcome. A further contention raised by the appellant is the submission made in relation to the position taken by the prosecution in the Magistrates Court regarding the recording of a conviction. It was submitted by the appellant, that the prosecution’s failure to make submissions that not recording a conviction would be beyond the exercise of the sentencing discretion prevented the appellant from advancing that contention in this jurisdiction. Held; the appeal is dismissed: 1. The Magistrate did not err in the exercise of the sentencing discretion. The Magistrate’s decision to impose a conviction does not fall outside of the permissible range of sentences for the offender and the offence. 2. The prosecution, by not advancing submissions in the Magistrates Court that not recording a conviction would go beyond the exercise of the sentencing discretion, does not preclude the prosecution from advancing an argument that the Magistrate did not err in recording a conviction. -- 1 of 10 -- Criminal Law Consolidation Act 1935 (SA) s 20(4)(b); Sentencing Act 2017 (SA) s 97(1); Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1, referred to. R v Wilton (1981) 28 SASR 362; R v Nemer (2005) 87 SASR 40; House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Lowndes v The Queen (1999) 195 CLR 665; R v Briese; Ex parte Attorney-General (1997) 92 A Crim R 75; R v Stubberfield (2010) 106 SASR 91; MacGregor v Police (1995) 66 SASR 269; R v Hoffman [2017] SASCFC 15, applied. -- 2 of 10 -- SALHAN v POLICE [2024] SASC 106 Magistrates Appeal: Criminal 1 McDONALD J (ex tempore): This is an appeal against a sentence imposed in the Berri Magistrates Court on 19 March 2024. On that date, the appellant pleaded guilty to one count of aggravated assault causing harm.1 The circumstance of aggravation was that the victim of the offence was his wife. 2 For this offence, the Magistrate imposed a two year good behaviour bond in the sum of $500,2 and recorded a conviction. The sole ground of appeal was that the Magistrate erred in the exercise of her sentencing discretion by declining to not record a conviction against the appellant. The facts 3 The Magistrate sentenced on a statement of agreed facts that had been produced by the parties. These were:3 1. On 31 July 2023 there was an argument between [the appellant] and [the victim] as he was considering purchasing property in India. There had been arguments previously due to issues to do with her mother’s behaviour. 2. The following day there was a further argument when [the victim] took [their son] and left him outside the toilet in the home. The toilet was being used by …, their housemate, and [the child] began knocking on the toilet door incessantly. [The appellant] took [the child] back to the room and counselled him against behaving in this way. At no point in time was he in any way rough with [the child] and he denies ever having been rough with him. 3. As he was speaking to their son, [the victim] resumed the argument from the day before with [the appellant]. She was yelling abuse and vulgarities at him in the Punjabi language in the presence of [the child] and [the housemate]. She referred to [the appellant] as a “bastard” and said that she wished his parents and family were dead. 4. She also grabbed the front of his shirt and pushed him repeatedly. 5. [The appellant] pushed her hands away and as she continued yelling abuse and vulgarities at him, he slapped her twice. 6. He accepts that notwithstanding [the victim’s] behaviour he should not have reacted as he did and he should instead have walked away. 7. [The appellant] denies the other allegations of violence that [the victim] makes vociferously. 1 Criminal Law Consolidation Act 1935 (SA) s 20(4)(b). 2 Sentencing Act 2017 (SA) s 97(1). 3 FDN 9 at 17. -- 3 of 10 -- [2024] SASC 106 McDonald J 2 4 As a consequence of this assault, the victim suffered a bloody lip with associated swelling to the cheek and bruising to her right arm. The appellant’s personal circumstances 5 The appellant is 34 years old and was born in India. He and the victim married in India in 2015. They moved to Australia in 2016, initially living in Perth before moving to Melbourne and then Renmark, where this offence took place. There is one child of the marriage, who is five years old. 6 The appellant has no criminal history, nor was there any suggestion that the assault was part of an ongoing course of domestic violence. The appellant was sentenced on the basis that the offending occurred in isolation in the context of a deteriorating relationship. 7 The appellant is highly qualified, having obtained a Bachelor of Commerce from the Punjab University, an MBA from the Punjab Technical University, a Masters of Professional Accounting and Business Administration from Holmes College in Victoria, and a Certificate III in Painting and Decorating from Della International College in Sunshine, Victoria. 8 In India, the appellant worked as an accountant. During his time in Perth, the appellant undertook an English course and then worked as a farm worker for a year after he moved to Victoria. He then worked for about 18 months on a dairy farm before taking up a position as a painter. The appellant has continued to work as a painter since he has moved to South Australia. He has his own painting business, however, when work is slow, he picks up casual painting work with another business. 9 During sentencing submissions, the appellant’s solicitor provided the Magistrate with a written reference from the appellant’s employer. In that reference, the appellant is described as honest, respectful, friendly and hardworking. Relevantly to this appeal, the employer also said:4 I also want to mention that many times my company got painting contracts to do painting work in schools, kindergartens and nursing homes. To work at those places every worker needs to obtain police checks. If an employee has any criminal record he may not be allowed to work in such places. 10 At the time of being sentenced, the appellant was also in the process of making an application for accreditation as an Uber driver, in order to supplement his income. As part of the accreditation process, the appellant would be required to provide Uber with a police check and a working with children check. 11 It was submitted by the appellant’s solicitor that the appellant is now also eligible to make an application to become an Australian citizen. As part of that process, the appellant would need to submit a police check. There was, however, 4 FDN 9 at 20. -- 4 of 10 -- [2024] SASC 106 McDonald J 3 no evidence as to the impact of this conviction on the likelihood of the success of the application, nor whether the appellant truly intends to make such an application, in circumstances in which he has not yet commenced the process. 12 Whilst I accept as a general proposition that a conviction has the real potential to impact future employment, any suggested impact on citizenship is, at best, speculative. The position taken by the prosecution in the Magistrates Court 13 I digress for a moment to say something about a submission made by the appellant regarding the position taken by the prosecution in the Magistrates Court in relation to the recording of a conviction. 14 During sentencing submissions, the prosecutor advanced no argument in opposition to the appellant’s submissions in support of a favourable exercise of the discretion to not record a conviction. It was submitted by the appellant in this Court that, having failed to make any submission to the sentencing Magistrate that not recording a conviction would be beyond the proper exercise of her Honour’s discretion, the respondent is now prevented from successfully advancing an argument that the Magistrate did not err in recording a conviction. 15 In support of this submission, the appellant relied on R v Wilton.5 That was a case in which the prosecution appealed a sentence on the basis that the Judge erred in suspending a sentence of imprisonment, in circumstances in which the prosecution had not opposed the imposition of a suspended sentence during sentencing submissions. 16 In considering the impact of that change of position on the prospect of the appeal succeeding, King CJ made the following observation:6 It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait by “double jeopardy”. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing Judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the Judge, and this course is regarded by the prosecution as beyond the proper scope of the Judge’s discretion, a submission to that effect should be made. Generally speaking, if the submission is not 5 (1981) 28 SASR 362. 6 Ibid at 367-368. -- 5 of 10 -- [2024] SASC 106 McDonald J 4 made to the sentencing Judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General. (Footnotes omitted) 17 In Wilton, the prosecution sought to rely on a submission on the appeal that was completely at odds with the submissions made before the sentencing Judge. That is not the position here. During sentencing submissions, the prosecution did not challenge that it fell within the sentencing discretion to decline to record a conviction. That is not at odds with the submission made in this Court, that it was also open to the Magistrate to record a conviction. The prosecutor appearing in the lower court simply left it to the Magistrate. 18 Regardless, even if the prosecution was in some way bound by the position that was taken in the Magistrates Court, as a matter of general principle, that does not bind this Court.7 The Magistrate’s reasons 19 I turn then to the Magistrate’s reasons. 20 The Magistrate correctly identified that the maximum penalty for this offence is four years imprisonment. Her Honour accepted that the appellant was remorseful and gave him credit for his plea of guilty. The Magistrate noted that the appellant had no criminal history and made the observation that had it been otherwise, her Honour may have found that a sentence of imprisonment was justified to provide appropriate punishment, as well as to satisfy the requirements of personal and general deterrence. 21 The Magistrate accurately set out the factual basis of the plea and made relatively detailed references to the personal circumstances of the appellant, and those matters put on his behalf in mitigation of the penalty. Her Honour was prepared to accept the submission of the appellant’s solicitor that this assault fell at the lower end of the scale of seriousness for such offences. However, went on to observe that it remains important to denounce the offending. Her Honour said: The higher courts have recognised the importance of both specific and general deterrence in sentencing for domestic violence together with the need for the protection of the victim and the community. Those courts have described violence in this context as being cowardly and inexcusable. Arguments between partners must not degenerate to violent acts where force is used to address grievances and general unhappiness between couples. 22 Having determined to impose a good behaviour bond, the Magistrate gave separate consideration to the submissions made by the appellant’s solicitor that no conviction be recorded. Her Honour identified each of the appellant’s personal circumstances relied upon in support of that submission, including the impact on the appellant’s employment, his application to be an Uber driver and his ability to become an Australian citizen. Her Honour, however, concluded that the 7 R v Nemer (2003) 87 SASR 168 at [31] (Doyle CJ). -- 6 of 10 -- [2024] SASC 106 McDonald J 5 seriousness of the offence and the need for general deterrence, outweighed the appellant’s personal circumstances and required that a conviction be recorded. 23 The Magistrate explained that the recording of a conviction is, in itself, an element of punishment and acts as a deterrent to the appellant and more generally to people who offend in this way. 24 The appellant does not suggest that there is any process error evident from the sentencing remarks, but rather that the outcome was so unreasonable as to fall outside of the scope of the sentencing discretion. Principles on appeal 25 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA) (‘the Rules’). Appeals from a Magistrate to a single Judge of the Supreme Court are by way of a rehearing pursuant to r 191.1 of the Rules. 26 In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error of the kind described in House v The King.8 The approach to be adopted was summarised by White J in Wittwer v Police:9 The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly. … 27 The Court will not interfere merely because it would have exercised the sentencing discretion in a different way than the sentencing Magistrate. 28 In Lowndes v The Queen, the High Court observed that:10 … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. That is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. 29 The ultimate question on this appeal is whether the sentencing Magistrate failed to properly exercise her discretion in arriving at a decision to record a conviction. Accordingly, the appellant must demonstrate that the Magistrate committed an error of a type that would vitiate the Magistrate’s discretion, before 8 (1936) 55 CLR 499 at 505. 9 [2004] SASC 226 at [16]. 10 (1999) 195 CLR 665 at [15]. -- 7 of 10 -- [2024] SASC 106 McDonald J 6 this Court is empowered to interfere with the order. It is not enough that this Court would have taken a different view. Recording of a conviction 30 Section 97 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) confers a discretion on the Court to decline to record a conviction on the imposition of a bond to be of good behaviour. Unlike other sections of the Sentencing Act, that allow for not recording a conviction,11 under s 97 there is no presumption in favour of or against the recording of a conviction. The discretion is at large, enabling the Court to “discharge the defendant, with or without recording a conviction”, if good reason exists. 31 The recording of a conviction serves many purposes, including a formal finding of guilt of a crime, a public declaration that the person engaged in such criminal conduct, the communication of the community’s denunciation and censure of the conduct and to act as a deterrent. In deciding whether to record a conviction, consideration must be given to the offender and the impact that it will have on the individual as compared with the public interest inherent in the recording of a conviction. 32 In R v Briese, Ex parte Attorney-General,12 which was cited with approval in R v Stubberfield,13 Thomas and White JJ discussed the tension between these competing interests:14 … the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department. … For present purposes it is enough to note that the making of an order … has considerable ramifications of a public nature, and courts need to be aware of this potential effect. … On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation … Did the Magistrate err in determining to record a conviction? 33 I turn then to the question of whether the Magistrate erred in determining to record a conviction. 34 The considerations before the sentencing Magistrate were finely balanced. There was much that could be said that was favourable about the appellant’s 11 Sentencing Act 2017 (SA) s 23 and s 24. 12 (1997) 92 A Crim R 75. 13 (2010) 106 SASR 91 at [44]. 14 R v Briese; Ex parte Attorney-General (1997) 92 A Crim R 75 at 79. -- 8 of 10 -- [2024] SASC 106 McDonald J 7 personal circumstances and I accept that the recording of a conviction will have an impact on the work that he will be in a position to undertake in the future. 35 In submissions, counsel for the appellant relied on the decision of Debelle J in MacGregor v Police.15 In that case, Mr MacGregor had pleaded guilty to two counts of theft, both of which occurred on the same day and involved the shoplifting of two items of property, a pair of shoes valued at $20 and a rug valued at $50. For that offending, Mr MacGregor was ordered to serve 160 hours of community service within six months and a conviction was recorded for each of the two offences. 36 Mr MacGregor appealed the decision of the Magistrate to record a conviction. That appeal was successful. Debelle J found that the Magistrate had failed to adequately balance the seriousness of the offending and the need for punishment against Mr MacGregor’s personal circumstances and the effect that recording a conviction would have on him. Debelle J explained the balancing process that a Court is required to undertake in determining whether to record a conviction. His Honour said:16 The criminal law exists for the protection of the public and the protection of the public must remain the first concern of the court. But public concern about crime should not displace the fundamental concepts of justice and mercy which should animate criminal tribunals of civilised nations. Whilst the protection of the public is the first concern of the courts, if, consistently with that, the courts can, in their compassion, assist another human being to avoid making ruin of his life, they ought to do so. 37 Consistent with that approach, Debelle J came to the view that Mr MacGregor’s circumstances were such that the consequences of the convictions were disproportionate to the seriousness of his conduct. 38 It was the appellant’s submission that, given the Magistrate accepted this offending fell at the lower end of the scale of seriousness of offences of this type, and in particular the role that the victim played in the escalating domestic dispute, the recording of a conviction and the consequences that will follow are a disproportionate outcome. It was contended that this disproportionality is heightened as a consequence of current community attitudes towards domestic violence. That was said to be because, given the prima facie seriousness of domestic violence offending, it creates the potential for the appellant’s offending to appear more serious than it actually was. 39 That submission, however, needs to be considered in the context of the observations made by Nicholson J in R v Hoffman, where his Honour said:17 … I am not, … persuaded in the circumstances of this case by the argument that a conviction should not be recorded because of the potential prejudice to the appellant’s 15 (1995) 66 SASR 269. 16 Ibid at 272. 17 [2017] SASCFC 15 at [29]. -- 9 of 10 -- [2024] SASC 106 McDonald J 8 future employment prospects. It is not necessary to develop this issue other than to observe the following. It is apparent that even where a conviction is not recorded for an offender, the offender history report still will record the offence, that it was committed and the penalty imposed. Further, modern employment practices when investigating the background of a potential employee are such that a more expansive disclosure, over and above whether the applicant has any “convictions”, is often requested. As such, the typical submission that the recording of a conviction is likely to have negative consequences for employment prospects is likely, in many cases, to be given less weight than previously has been the case. 40 The fundamental difference between MacGregor and the appellant’s circumstances in this case is the nature of the offence committed. Any offence of domestic violence, even one that falls at the lower end of the scale of seriousness, raises far greater concerns about the potential risk to the community, than the shoplifting of two items of relatively minor monetary value. 41 It follows that in the circumstances of this case, the need for adequate punishment and a sentence that has a deterrent effect is heightened. 42 It is clear that the Magistrate gave careful consideration to the appellant’s personal circumstances and the impact on him upon recording a conviction. 43 I have arrived at the view that, in all of the circumstances, it cannot be said that the decision to impose a conviction fell outside of the permissible range of sentences for the offender and the offence. 44 I dismiss the appeal. -- 10 of 10 --