BAKER v POLICE

[2004] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

BAKER v POLICE

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White)

22 June 2004

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM

Application for leave to appeal against conviction and sentence - application for leave to appeal in private - leave refused.

Supreme Court Rules r94.02, r94.03, referred to.

BAKER v POLICE
[2004] SASC 179

FULL COURT

1. Doyle CJ, Debelle and White JJ   This is an application for leave to appeal to the Full Court.

2. The applicant wishes to appeal against a decision of a Judge of this Court, dismissing an appeal against a conviction recorded by the Magistrates Court, and dismissing an appeal against a sentence imposed by the Magistrates Court.  The conviction was for the offence of assault occasioning actual bodily harm.  The Magistrate sentenced the applicant to imprisonment for a term of 10 weeks, and declined to suspend the sentence.

3. The Judge of this Court who heard the appeal, and dismissed it, has refused leave to appeal.

4. The applicant has now made application for leave to appeal.  The Court has considered the application in private pursuant to r94.02 and r94.03 of the Supreme Court Rules.  For that purpose the Court has considered the reasons of the Judge, the transcript of the application for leave to appeal made to the Judge, and the written summary of arguments submitted by the applicant in support of the application now under consideration.

5. The Judge’s reasons indicate that the appeal against conviction turns on a challenge to the Magistrate’s findings of fact.  Those findings rest substantially on findings as to the credibility of the main prosecution witnesses.  The Judge has considered the arguments advanced to him, and has rejected them.  There is no apparent flaw in his approach.  The written summary of argument does not identify any flaws.  It appears that the appeal, were leave to be granted, would involve no more than a re-argument of the issues of fact decided by the Magistrate, and considered and rejected by the Judge on appeal.

6. We are not satisfied that the appeal is reasonably arguable.  There is no reason to think that a challenge to the Judge’s decision is likely to be successful.  Nor does the case raise any point of principle.  It is no more than an attempt to re-argue the facts already argued before the Judge.

7. The sentence of 10 weeks’ imprisonment is a substantial one.  The applicant is a man aged 44 years.  The victim of the assault was a young boy aged 14 years.  He was the son of a woman with whom the applicant lived.  The assault occurred when the victim failed to return home from school at the usual time.  His mother had become concerned about his welfare.  When he did come home there was some kind of confrontation, and according to the Judge the victim used some bad language when speaking to the applicant.  On the prosecution case, it was then that the assault occurred.

8. On the evidence, the assault was a serious one.  The victim suffered some significant injuries.  The applicant has committed a number of prior offences.  However, he has not offended between 1991 and early 2002.  A report from a psychologist indicated that the applicant is a man of limited intellect, with a history of compulsive and aggressive behaviour.  According to the psychologist the applicant was not operating at a much higher level of emotional maturity than the 14 year old victim.

9. In our view it is not reasonably arguable that the sentence is manifestly excessive.  It is a substantial sentence, but this was a serious case and the applicant is a man who has a record of offending.  Making all allowances for his limited intellectual capacity, it remains the case that the sentence is well within the appropriate range.

10. The applicant also wishes to challenge the Magistrate’s decision not to suspend the sentence.  The factors in favour of suspending the sentence are mainly the period of time during which the applicant did not commit offences, and the applicant’s own limited intellect.

11. It is apparent from the Judge’s reasons that these matters were all canvassed by the Magistrate.  They were canvassed and considered again by the Judge.  He took the view that he should not interfere with the Magistrate’s decision.  Once again, the application for leave to appeal in this respect raises no point of principle.  We consider that it is not reasonably arguable that the Judge erred.

12. For those reasons we refuse leave to appeal against conviction and refuse leave to appeal against sentence.