Billy Joe Dolan v R No. SCCRM 94/217 Judgment No. 4633 Number of Pages 3 Criminal Law and Procedure

[1994] SASC 4633

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Criminal law and procedure - Sentence - common assault - impulsive punch when drunk - relatively minor injury - man aged 18 years with no prior convictions - sentence 9 months' imprisonment suspended manifestly excessive - on appeal sentence 120 hours community service and payment of $476 compensation.

HRNG ADELAIDE, 22 June 1994 #DATE 22:6:1994

Counsel for appellant:     Mr C J Pollard

Solicitors for appellant:    Clelands

Counsel for respondent:     Mr S A Millsteed

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the District Court for the crime of common assault. The sentence imposed was imprisonment for nine months.

2. That sentence was suspended upon condition that the appellant enter into a bond in the sum of $500 to be of good behaviour for a period of two years. There was an order that the appellant pay the sum of $476.85 by way of compensation within three months.

3. The offence was committed in a bar at night when the appellant was in the company of others. He received a push. He turned round and struck the person whom he thought to have pushed him. He struck at least one punch and on the victim's account two or three punches. It turned out that the victim was not the person who pushed him.

4. The victim sustained nose bleeding as well as some bruising on the face and in the region of the eye. He was treated at a medical centre. He was shaken up by the incident and remained away from work for two weeks.

5. The appellant was just over 18 years of age at the time of the incident. He was a person of previous good character. He had no prior convictions. Moreover, he was highly spoken of by character witnesses.

6. He was in regular employment. He was a league footballer, well spoken of by his football coach. He co-operated with the police. He pleaded guilty and expressed contrition for the offence.

7. Mr Pollard, who appeared for the appellant before us, submitted that a sentence of imprisonment for nine months, albeit suspended, was a manifestly excessive sentence for the offence. There is no doubt that the offence was impulsive. It occurred in a bar when the appellant was under the influence of liquor. There was no premeditation about it and the injuries caused were relatively minor.

8. The maximum sentence for common assault is imprisonment for two years. There are undoubtedly circumstances in which a common assault should attract a sentence of imprisonment and in appropriate circumstances a sentence of imprisonment to be served immediately.

9. However, it seems to me that in the circumstances of this case, and also having regard to the antecedents of the appellant and the matters personal to him, to which I have referred, a sentence of nine months imprisonment was manifestly excessive.

10. In my opinion therefore the appeal should be allowed and the sentence should be set aside.

11. On that view of the matter, it is for this court to impose the appropriate sentence. Mr Pollard has contended that a fine would be appropriate, although his client would be content with community service. Mr Millsteed, for the prosecution, has contended that the offence merits imprisonment and that there should be a sentence of imprisonment, albeit a suspended sentence.

12. I have reached the conclusion that the best way of dealing with the appellant is to require him to make the payment of compensation which was ordered by the sentencing judge and to perform 120 hours of community service within six months.

13. I think that the mitigating factors associated with the offence, to which I have referred, and the good record of the appellant and his plea of guilty and co-operation with the police are justification for this court refraining from imposing a sentence of imprisonment.

14. I think that a period of community service will impose a punishment upon the appellant and perhaps bring home to him that the offence which he has committed was deserving of punishment.

15. In my opinion, therefore, the appeal should be allowed and the sentence should be set aside and the sentence of the court should be as I have indicated. The order of the court will be as I proposed. There will be an order pursuant to s.53 of the Criminal Law (Sentencing) Act that the defendant pay to the Sheriff the sum of $476.85 by way of compensation to the victim not later than 18 August 1994.

16. There will be an order pursuant to s.18 of the Criminal Law (Sentencing)Act that the defendant perform community service for 120 hours within a period of six months.

JUDGE2 PRIOR J On the facts as agreed before the District Court judge, a sentence of nine months imprisonment was manifestly excessive. Given that the sentencing discretion has miscarried and this court must interfere, I agree with the Chief Justice that the appellant's personal circumstances, particularly his age and previous good character, make good the fact that a sentence other than a sentence of imprisonment is appropriate in this case. I concur in the sentence proposed by the Chief Justice.

JUDGE3 PERRY J I agree that the appeal should be disposed of by an order in the terms suggested by his Honour the Chief Justice.