Aplin v Police - [1999] SASC 273

APLIN v POLICE
[1999] SASC 273

Magistrates Appeal: Criminal

DOYLE CJ. (ex tempore) This is an appeal against a sentence imposed by the Magistrates Court. The appellant pleaded guilty to charges of assault occasioning actual bodily harm contrary to s40 of the Criminal Law Consolidation Act; threatening harm intending to arouse fear that the threat would be carried out contrary to s19(2) of the Criminal Law Consolidation Act, and carrying an offensive weapon, a knife, contrary to s15(1)(a) of the Summary Offences Act.
The first two of these offences carry maximum sentences of five years imprisonment. The maximum sentence that a magistrate could impose for any one of the offences is two years imprisonment.
The offences were committed as part of a single incident on 15 July 1998. The victim of each offence is the appellant's father.
The magistrate imposed a single sentence of imprisonment of nine months. He declined to suspend the sentence. The issue on appeal is whether the sentence is manifestly excessive because the magistrate refused to suspend it. The sentence of imprisonment itself is not challenged.
As best I can tell from the sentencing remarks, the magistrate accepted the substance of the submissions put to him at the time by Mr Keane who was acting for Mr Aplin. I proceed on that basis.
Mr Aplin is 23 years of age. He grew up in a family in which his father was an alcoholic. His father was violent towards him at times. There was also violence on occasions between his parents. Mr Aplin was badly treated by his father in other ways and grew up feeling unwanted and inadequate. He had a difficult time at school and was rather rebellious. He has had limited education and has no trade skills. In a sense, he is poorly equipped to cope with life. Since leaving school Mr Aplin has had some employment. He has a history of significant alcohol and drug abuse. He has led a rather disorganised life, never settling down. From time to time he has returned home to live with his parents despite the problems within the family.
At the time of the offences he was living at home. He was addicted to amphetamines at the time and was feeling the effects of the addiction. It was a low time in his life. Not long before he had attempted suicide. His relationship with his father had been bad for a long time. He resented his father's treatment of him in the past.
At the time of the offences his father and mother were arguing. I add that Mr Aplin has believed for some time that his father may have sexually abused him some years ago. This is based on an incident that occurred when he was about 14 years of age. I think the magistrate must have accepted that Mr Aplin believed this. Whether the belief is well founded or not does not have to be decided. Mr Aplin also suspected that his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Aplin v Police [1999] SASC 273
Case: [1999] SASC 273
Decision Date: 30 June 1999

CaseChat Overview and Summary

In the case of Aplin v Police, the appellant, Mr Aplin, appealed against a sentence imposed by the Magistrates Court. Mr Aplin pleaded guilty to assault occasioning actual bodily harm, threatening harm intending to arouse fear, and carrying an offensive weapon, a knife. The maximum penalty for each of the first two offences was five years imprisonment, and the maximum penalty for the last offence was two years imprisonment. The magistrate imposed a single sentence of imprisonment for nine months and declined to suspend the sentence. The issue on appeal was whether the sentence was manifestly excessive because the magistrate refused to suspend it. The appeal was allowed and the sentence was varied, with the sentence of nine months imprisonment being suspended on certain conditions.

The court considered the appellant's background and the circumstances of the offence, including the fact that the offence was committed under the influence of a deep-seated and long-standing hostility towards his father, and was an impulsive response to the situation. The court also considered the appellant's remorse, his efforts to control his anger and aggression, and his attempts to make a fresh start. However, the court also considered the seriousness of the offence and the need to make it plain that such violence cannot be accepted. The court noted that the appellant had been given plenty of chances and had been leniently treated in the past, receiving a number of suspended sentences.

The court also considered a report from a psychologist that was prepared after the magistrate passed sentence. The report disclosed that after being sentenced, the appellant made a serious attempt on his own life, and subsequent assessments have indicated that the appellant has probably suffered some brain damage as a result of this suicide attempt. The report also indicated that there is a real risk of a further attempt at suicide as a result of imprisonment, and that the appellant will find imprisonment particularly difficult. The court considered that these further developments provide a basis upon which it should interfere with the sentence, and that the sentence should be suspended with certain conditions.

The court considered the community interest in the appellant's effective rehabilitation, and noted that the community's interest will be both advanced and protected by giving the appellant one more chance with the threat of significant imprisonment hanging over his head. The court also considered that the appellant's mental state is such that there is possibly an increased risk of further offending when he is at liberty, but that a suspended sentence will be a substantial impediment to that further offending. The court therefore allowed the appeal, varied the sentence, and ordered that the sentence of nine months imprisonment be suspended on certain conditions.

Orders