In Scheving v Police [2011] SASC 128 the Supreme Court of South Australia has overturned a conviction for indecent assault allegedly committed against the female proprietor of a 'beauty therapy' service. The Court found that the SA Magistrates Court had failed to have due regard to the diminished credibility of the service's proprietor when it upheld allegations that the accused had inappropriately touched her. The Supreme Court further determined that a retrial was unnecessary in the particular circumstances.
The Court states that -
The appellant, Mr Egil Scheving, now aged 44, was born in Iceland on 31 May 1967. Arriving in Australia in 1998, he has worked here ever since and has never previously been convicted of a criminal offence in Australia or elsewhere.The report continues -
The appellant is a person conscious of his appearance and has had a practice of having excessive hair removed from various parts of the body about three times a year. In cross-examination he was asked why he did that and replied:It’s something that I’ve come use[d] to from where I come in Iceland. I guess we’re quite fashion kind of orientated people over there being a minority group similar maybe to the Japanese so this is quite a common treatment and it’s increasing commonly here as part of what people refer to as metro-sexual culture.In January 2010, he happened to notice an advertisement for hair removal services by a business named Cheeky Skin on a general advertising internet site Gum Tree Internet and telephoned to make an appointment. As at the relevant time, Cheeky Skin offered a range of services including various types of massages, various types of skin treatments and a range of waxing services which all had set prices except for “Brasilian Waxing” as to which price was “POA”. He attended at the business premises at the appointed time and met the sole proprietor, Ms O. Treatment started uneventfully but precisely what then occurred is disputed.
The appellant in no way avoided police about this matter and had left his correct name and contact details in a client form he had filled out on arrival. He was not approached by police for about three months, until shortly before his lengthy interview with police on 1 May 2010. He then voluntarily attended by appointment, without a lawyer, and answered all questions (although some of them would have been objected to by a lawyer) in a polite and restrained fashion. He was emphatic and unequivocal in his version of the facts. His reaction to the charges may be summarised in his own words in the interview when he said that he was “surprised about this allegation, very dumbfounded actually”.Just the thing for first year undergrad law students - metrosexual Icelanders, Brazilians, Cheeky Skin, disputes about evidence ...
Mr Scheving was self-represented in his appeal and among other things relied on a dictionary.
The Court stated that
The appellant is unrepresented in this Court. He fully co-operated with the police and gave evidence at trial consistent with his lengthy police interview. His case was, in my view, inadequately presented at trial and the Magistrate was deprived of the advantage of certain further evidence I have received on appeal. The Magistrate convicted the appellant but did so after acquitting him of another charge which depended on the credibility and reliability of the same complainant. The appellant is a man with no previous convictions who had, prior to this conviction, held a responsible position with a very worthy organisation whose members deeply regret the loss of his services. In such a case, it is well to closely bear in mind the words of King CJ (with whom Duggan and Zelling JJ agreed) in Laurie v Nixon:The Court held that -When such momentous consequences may result from a conviction based upon findings of fact by a magistrate sitting alone, the need for a critical and thoroughgoing scrutiny by the appellate court should need no emphasis. It involves no disrespect to the competence of the magistrates to recognise the existence of the risk of mistake by an individual magistrate as to matters of fact including the assessment of the credibility of witnesses.
the learned Magistrate:In R v RPJ [2011] VSC 363 the Victorian Supreme Court sentenced a 17 year-old offender guilty of manslaughter and recklessly causing serious injury to six years' imprisonment (with a four year non-parole period).• failed adequately to appreciate the extent of the diminution in the credibility and reliability of Ms O which was a necessary consequence of his decision not to accept her evidence as to masturbation;The cumulative effect of all of these matters is clearly that the conviction must be set aside.
• failed adequately to scrutinise the evidence of Ms O generally;
• failed adequately to appreciate the strengths of the defence case;
• erred in his approach to the complaint evidence as a matter of law; and
• would likely have come to different factual conclusions in favour of the appellant had he been made aware of the further evidence I have received on appeal.
RPJ pleaded guilty to one charge of recklessly causing injury (for which the maximum term of imprisonment is five years) and one charge of manslaughter (maximum term 20 years).
The injury charge related to an "entirely unprovoked and gratuitous" assault in October 2010, when RPJ attended a Halloween party.
You observed Zane McMillan walk into the loungeroom of the house and stated, “I want to hit that kid with the red hair”. No confrontation occurred and the comment was ignored by Mr McMillan. Later in the evening, there was a scuffle. Whilst there is a dispute as to your precise involvement in the scuffle, it is not necessary to resolve this dispute. Following the scuffle, everyone was requested to leave. You then left the premises and sat outside, yelling at people as they walked past.The Court seems to have been unimpressed with the notion that there's an open season on redheads, although that might be news to some critics of the current Prime Minister.
Subsequently, you and Travis Gurshall came across Mr McMillan and his friend, Todd Parker. Mr Gurshall and Mr Parker began a conversation, while you stood nearby with Mr McMillan. You stepped towards Mr McMillan and forcefully punched him on the left side of his face with a closed fist, knocking him unconscious and causing him to fall immediately to the ground. You then walked off with Mr Gurshall. When questioned as to your motive for hitting Mr McMillan, you stated, “It was the ranga from the party”.
In relation to the manslaughter charge the Court stated, in an echo of judgments by Lord Denning in 'twas a dark & stormy night' mode, that
On Saturday 6 November 2010, at approximately 11.30pm, Cameron Lowe left his home with the intention of getting something to eat from a Hungry Jack’s restaurant. He was in the company of two siblings and some friends. The group attended a Hungry Jack’s restaurant, before going to the drive-through area of a McDonald’s restaurant, where they were denied service due to not being in a motor vehicle.The Court emphasised the importance of rehabilitation in offences committed by juveniles. However the circumstances of the case led the Court to conclude that factors justifying the existence of a separate youth correctional system were displaced in importance in favour of a more punitive approach.
At approximately 12.00am, you were part of a large group that exited a party bus. You had been drinking alcohol prior to and during the party bus event. Whilst walking towards the same McDonald's restaurant that Mr Lowe's group had attended, you were in an aggressive and fighting mood. You commented that you wanted to fight. Attempts were made by your group to discourage you.
As the groups approached each other, there was some conversation between them. Precisely what was said is uncertain. However, comment appears to have been made as to the appearance of Mr Lowe’s group, resulting in Mr Lowe sarcastically identifying himself as a drug dealer and telling you not to speak to him. You then advanced towards Mr Lowe. In an unprovoked attack on him, you struck Mr Lowe with a clenched right fist to the left side of his jaw, knocking him unconscious. Mr Lowe fell to the ground lifelessly, his head bouncing on the roadway. You did not render assistance. You left the area immediately, displaying no concern for Mr Lowe. As with the assault you committed the previous week, this attack was entirely without cause and gratuitous.
Mr Lowe eventually regained consciousness through the assistance provided to him by his brother. Ultimately, he was taken home. The next day, he could not be woken. An ambulance was called. Mr Lowe was taken to the Alfred Hospital. He underwent surgery to relieve bleeding on, and swelling of, his brain. On 8 November 2010, Mr Lowe’s life support was ceased because his brain was showing no signs of activity. Mr Lowe passed away soon after.
In CNK v The Queen [2011] VSCA 228 the Court considered an appeal by a child offender who had been tried in the Victorian Supreme Court at age 15 for attempted murder. CNK was acquitted of attempted murder but convicted of aggravated burglary, kidnapping, recklessly causing serious injury and reckless conduct endangering serious injury. He received a total effective sentence of 3 years’ detention in a youth justice centre.
The application for leave to appeal "raises important questions about the sentencing of children under the Children, Youth and Families Act 2005 (Vic)". The Court concludes in its judgment that -
on the proper construction of the CYF Act general deterrence was excluded from consideration in the sentencing of children. The appeal therefore had to be allowed and the applicant resentenced.The judgment continues that -
The relevant provision is s 362(1) of the CYF Act, which provides as follows:(1) In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to —In our view, the language of s 362(1), and the nature of the matters to which regard must be had, are such as to preclude any consideration of general deterrence. Our reasons are as follows.
a) the need to strengthen and preserve the relationship between the child and the child's family; and
b) the desirability of allowing the child to live at home; and
c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
d) the need to minimise the stigma to the child resulting from a court determination; and
e) the suitability of the sentence to the child; and
f) if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
g) if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
We start with the opening words of the subsection. Not only is the language imperative (‘the Court must’) but the words 'as far as practicable' operate, in context, as words of emphasis. Since the word 'practicable' means 'feasible' or 'able to be done or accomplished', the phrase 'as far as practicable' means as far as it is possible to go. Hence the sentencing court must have regard to each of the specified matters to the maximum extent possible. And the statutory obligation to 'have regard to' a specific matter requires the Court to give the matter weight 'as a fundamental element in the decision-making process'. Moreover, as explained below, the specified matters are not matters of fact but statements of policy. They identify the policy objectives which must – to the maximum extent possible – govern the sentencing of young offenders.
Secondly, the matters to which regard must be had are – without exception – directed at a consideration of the effect of the proposed sentence on the child. This is true even of para (g) which, although expressly referring to the need to protect the community, directs attention to what will deter, or prevent, the particular child from engaging in ‘violent or other wrongful acts’.
The language of para (g) is particularly significant. Plainly enough, this paragraph is concerned with the protection of the community through specific deterrence, that is, deterrence of the particular child offender. General deterrence has traditionally been regarded as an important sentencing consideration at common law precisely because it, too, is conducive to community protection. The deliberate use of language in para (g) which deals only with specific deterrence, and which says nothing about the need to deter others from committing ‘violent or other wrongful acts’, is a clear indication of legislative intention, in our view. As will appear, the same conclusion was reached by the Full Court of the Supreme Court of South Australia, in construing almost identical legislation.
Thirdly, what s 362(1) obliges the sentencing court to do 'as far as practicable' is to impose a sentence which fits the young offender as much as – or perhaps even more than – it fits the crime. Thus the Court must, as far as practicable, impose a sentence which is suitable to the child (para (e)) and must, as far as practicable, impose a sentence which will achieve the following policy objectives:• strengthen and preserve the child’s relationship with his/her family;General deterrence as a sentencing consideration is entirely foreign to a scheme of this character. For, unlike all other sentencing considerations, general deterrence is unconnected with the particular offender. Rather, the principle of general deterrence treats the offender as a means to an end, as an instrument for effecting a broader community interest. The Court must ask itself what sentence should be imposed on the offender in order to deter other persons who might be minded to engage in similar offending.
• allow him/her to live at home;
• allow him/her to continue with education, training or employment; and
• result in the minimum stigma to the child.
It is accepted that, where the principle of general deterrence applies, it may necessitate the imposition of a higher sentence than would be necessary if that principle were not applicable. (As will appear, the sentencing judge in the present case felt constrained by the need for general deterrence to reject a less stringent sentencing option put forward by the defence.) By contrast, the unambiguous command of s 362(1) is that no greater sentence should be imposed on the child than the nature and circumstances of the child’s offending require. It would, in our view, be wholly inconsistent with this intention were the sentencing court to be obliged – where necessary – to impose a heavier sentence, not because of any aspect of the child’s offending or personal circumstances but because of the need to deter others from engaging in similar conduct.
Put another way, if a sentence were increased – for the purpose of general deterrence – beyond what would otherwise have been imposed on the child, the sentencing court would have breached its obligation to secure ‘as far as practicable’ the objectives set out in s 362(1). More particularly, to treat a child as a vehicle for general deterrence would amount to ‘making an example’ of the child, for the purpose of deterring others. This would, in our view, be in direct conflict with the Court’s obligation under s 362(1)(d) to ‘minimise the stigma to the child’ resulting from the Court’s determination.
For the reasons we have given, the language of the statute conveys a clear legislative intention to exclude general deterrence. Whilst that intention is not made explicit, it is necessarily implied by the terms in which s 362(1) prescribes the sentencing court’s task
