BLUM v Police

Case [2016] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

BLUM v POLICE

[2016] SASC 52

Judgment of The Honourable Justice Stanley

20 April 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES

This is an appeal against sentence. The appellant was sentenced to a term of seven months and 14 days imprisonment for two counts of aggravated assault against a domestic partner contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) and one count of failure to comply with a term or condition of a bail agreement contrary to s 17 of the Bail Act 1985 (SA). Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the sentencing magistrate imposed a sentence of seven months imprisonment in respect of the two counts of aggravated assault and a term of 14 days imprisonment for the offence of breach bail. Before the magistrate the appellant pleaded guilty to these offences. The magistrate discounted the sentences by 30 per cent pursuant to s 10B of the Criminal Law (Sentencing) Act 1988 (SA). The magistrate was not satisfied that good reason existed to suspend the sentence imposed.

The sole ground of appeal is that the sentence is manifestly excessive.  Subsumed within that ground is a complaint that the magistrate erred in failing to suspend the sentence in whole or in part.

Held per Stanley J (dismissing the appeal):

1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [12]).

2.  No error has been demonstrated in the approach taken by the magistrate in declining to find the existence of good reason to suspend the sentence imposed either in whole or in part (at [20]).

Criminal Law (Sentencing) Act 1935 (SA) s 20(3); Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10B, s 38, referred to.
Papdopoulos v Police [2008] SASC 165, distinguished.
R v Jongewaard (2009) 266 LSJS 283; Singh v Police [2013] SASC 155; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; The Queen v Morse (1979) 23 SASR 98; R v McPartland and Polkinghorne (2014) 120 SASR 69; Hili v The Queen (2010) 242 CLR 520; Wessling v Police (2004) 88 SASR 57; R v Wacyk (1996) 66 SASR 530; R v Lutze (2014) 121 SASR 144, considered.

BLUM v POLICE
[2016] SASC 52

Magistrates Appeal

STANLEY J:

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BLUM v Police [2016] SASC 52
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[2016] SASC 52
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CaseChat Overview and Summary

In the case of Blum v Police, the appellant contested the decision of a magistrate who declined to suspend the sentence of imprisonment imposed upon him. The appellant was sentenced for two counts of aggravated assault and a breach of bail. The appeal was heard by the Supreme Court of South Australia, which reviewed the magistrate's decision under the Sentencing Act 1995 (SA). The primary issue before the court was whether the magistrate erred in declining to find good reason to suspend the sentence of imprisonment, either in whole or in part.

The court considered the magistrate's approach to the decision-making process in assessing whether good reason existed to suspend the sentence. The court found that the magistrate had properly considered the relevant sentencing considerations, including the appellant's personal circumstances and the public interest in the appellant's rehabilitation. The magistrate concluded that the appellant's offending was too serious to justify the suspension of any period of imprisonment. The court held that the inquiry into "good reason" is inherently evaluative and discretionary, and that the magistrate's decision was not infected by error. The court found that the magistrate had given due deference to the sentencing discretion reposed in him, and that there was no manifest error in the decision not to suspend the sentence.

The court dismissed the appeal and upheld the magistrate's decision to impose the sentence of imprisonment. The court noted that the sentence was within the available range of sentences for offending of this nature, and that it reflected the need for both personal and general deterrence. The court also noted that the appellant had previously received the benefit of lenience from the court in relation to violent offending, and that this did not appear to have had a significant impact on his behaviour. The court concluded that the decision to suspend a sentence of imprisonment is a matter for the court's discretion, and that the magistrate had exercised that discretion in a manner that was not infected by error.

The final orders of the court were that the appeal be dismissed, and that the sentence of imprisonment imposed by the magistrate be upheld. The appellant was ordered to serve a term of imprisonment of 10 months for the two counts of aggravated assault, and 14 days for the breach of bail, to be served cumulatively. The court did not make any orders in relation to the suspension of the sentence, as it found that the magistrate had properly exercised his discretion in declining to find good reason to do so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view no error has been demonstrated in the approach taken by the magistrate in declining to find the existence of good reason to suspend the sentence imposed either in whole or in part. The magistrate considered whether good reason existed to suspend the sentence. While the magistrate did not expressly refer to suspension of part of the sentence, I am satisfied that the magistrate, in considering this issue, understood that the power reposed in the court to suspend a sentence of imprisonment if good reason to do so is found to exist, extended to suspending part only of that sentence. The magistrate said that he was firmly of the view that the appellant’s offending was simply too serious to justify suspension of “any period of imprisonment”.[17] Whether good reason exists involves an evaluative assessment. It is a discretionary judgment.[18] The magistrate had regard to the relevant considerations in declining to find good reason existed to suspend the sentence. The magistrate plainly had regard to the appellant’s personal circumstances.[19] In relation to the public interest in the appellant’s rehabilitation, there was little that could be said in favour of the appellant to persuade the magistrate that his prospects for rehabilitation were favourable. He had previously received the benefit of lenience from the court in relation to violent offending. That appears to have been to no avail. The appellant cited the approach taken by David J in Papadopoulos v Police.[20]That case is clearly distinguishable. The court allowed an appeal against a decision of a magistrate who declined to suspend a term of imprisonment where the magistrate had failed to have regard to the lack of prior criminal history and a relevant feature of the appellant’s personal circumstances, namely, his good work record. That is far from this case. In any event, a failure to give adequate weight to a relevant consideration does not disclose error.[21] The magistrate did not have regard to irrelevant considerations. There is no patent error demonstrated. Neither do I consider there is any latent error. I do not consider that the failure to suspend was obviously so unreasonable or plainly unjust that the decision could only be made erroneously. This was serious offending against a background of earlier offending. In the exercise of its appellate function, this Court must give due deference to the sentencing discretion reposed in the magistrate. It is not a question of whether I would have reached a different decision but whether the exercise of the sentencing discretion is infected by error. In my view it was not. [17] Sentencing remarks [18]. [18] Brookes v Police [2014] SASC 22 at [9]. [19] Sentencing remarks [12] – [13]. [20] [2008] SASC 165. [21] R v Lutze [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154. Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Section 38 requires the court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentence.[14] The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[15] It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[16] The decision to suspend must be made solely on the facts and circumstances of a particular case. [14] Wessling v Police [2004] SASC 51 at [27], (2004) 88 SASR 57 at [63].[15] R v Wacyk [1996] SASC 5622, (1996) 66 SASR 530 at 535.[16] R v Wacyk [1996] SASC 5622, (1996) 66 SASR 530 at 535.Consideration The maximum penalty for an aggravated offence of assault is imprisonment for three years. Accordingly, the starting point of 10 months is less than 28 per cent of the maximum penalty for one count of that offence. The appellant conceded that the term of imprisonment imposed for the two counts of aggravated assault could not be considered to be manifestly excessive. That concession was properly made. While the offending in this case was not of the most serious kind of domestic violence which the courts see, such offending is innately serious and far too prevalent in the community. Further, it is the case that the appellant was being sentenced for two counts of aggravated assault, which, while only ten hours apart still represent separate courses of criminal conduct. Moreover, the offences were committed in the victim’s place of residence. A place where she particularly is entitled to feel safe. Such offences, in all but the most exceptional of cases, require that the courts impose sentences which reflect the need for both personal and general deterrence. Given the appellant’s previous history of violent offending and the lenience afforded him in the past, I consider that the term of imprisonment imposed was within the available range of sentences for offending of this nature. The courts must impose sentences which afford protection to vulnerable and trusting partners who could legitimately expect the offender would protect them from violence, not inflict it. Likewise, the appellant concedes that the sentence imposed of 14 days imprisonment for the breach of bail, to be served cumulatively upon the sentence imposed for the two counts of aggravated assault, could not be considered manifestly excessive. Again this concession was properly made. The appellant’s real complaint is the failure to suspend the sentence. The appellant submits that the magistrate erred in failing to find good reason existed to suspend some or all of the sentence imposed by reason of his personal circumstances and because of the public interest in the appellant’s rehabilitation.