Bolland v Police No. Scgrg-98-1144 Judgment No. S6859

BOLLAND v POLICE
[1998] SASC 6859

Magistrates Appeal

Perry J (ex tempore)

The appellant appeals against the sentence imposed upon him following his plea of guilty in the Magistrates Court sitting at Elizabeth to a charge that on 14 February 1998 at Gawler he assaulted another man contrary to s39(1) of the Criminal Law Consolidation Act, 1935.
The appellant was represented by counsel in the court below. After hearing submissions, the learned magistrate sentenced the appellant to a custodial term of imprisonment for three months.
The appeal is brought against that sentence.
The grounds set out in the notice of appeal are that the sentence was manifestly excessive, and that the learned sentencing magistrate failed properly to exercise his discretion to suspend the sentence.
The appellant is a young man aged 19 years.
I have been furnished with an affidavit by the police prosecutor which summarises the circumstances of the assault. It appears from that affidavit that the victim was at the Shell Service Station in Murray Street at Gawler and had just finished putting fuel into his car. For some reason the victim was kneeling down close to the car, calling his dog who was in the car. The appellant walked up to him and kicked him in the face, with the result that the victim fell back on his back. The impact must have been severe as, according to a witness, the victim appeared severely concussed.
The police were able to verify the circumstances of the assault when they subsequently attended at the scene, by viewing a security video of the incident.
According to the statement subsequently made by the appellant to the investigating police officers, the victim was in fact holding his dog by his collar, and on his account of the matter the victim was about to set his dog on him. Be that as it may, the appellant did not attempt to conceal the fact that he proceeded to kick the victim. He admitted that it was a “pretty stupid” action on his part.
The appellant had no prior convictions of any consequence.
I have also been given the benefit of an affidavit sworn by Mr Winter who is the solicitor who appeared for the appellant and represented him in the court below. He sets out in the affidavit the various submissions which he made to the learned sentencing magistrate. It appears from that affidavit that the appellant migrated to Australia from England about six years ago, and had been employed only in a fragmentary fashion after finishing year 10 at school, that employment being as a farm hand, at least that was his last job. It was put to the learned sentencing magistrate that the appellant had work to go to in Queensland.
As to the circumstances of the offence, the appellant had been drinking beer. He was not an experienced drinker and conceded through his counsel that he was drunk. Mr Winter put to the learned sentencing magistrate that there was only a glancing blow to the victim's head, that the appellant was deeply sorry for his actions, and was ashamed of his conduct. It was put that the actions were out of character and a product of his consumption of alcohol. The learned sentencing magistrate was urged to suspend the sentence that he might otherwise be disposed to impose, bearing in mind that the appellant was a young first offender.
At the outset of the appeal, Ms Lieschke, who appeared for the respondent, invited the court to receive in evidence a victim impact statement verified by a further affidavit sworn by the police prosecutor, Mr Modra. In this further affidavit Mr Modra concedes that he did not tender a copy of the victim impact statement in the court below, although it was attached to the court file. He gives no explanation as to why that occurred.
Clearly it is not fresh evidence, so much was conceded by Ms Lieschke. I can only assume that the victim impact statement was overlooked by the prosecutor. Under the Sentencing Act the court was obliged to take into account a victim impact statement and it should have been tendered. However, in all the circumstances I do not think that it is right that I should receive the victim impact statement now, on the hearing of the appeal.
The ordinary rule is that appeals proceed on the basis of the material which was before the sentencing court. Although it was unfortunate that the victim impact statement was not tendered, given that it was available, I think it is now too late to remedy that error.
In the course of his sentencing remarks the learned magistrate said:
“There really is no explanation that is advanced for your conduct other than the fact that your judgment was impaired by alcohol. This is, as Mr Winter says, a very serious matter. It involves the use of violence to another, it is an unprovoked incident, and it is the type of matter, in my view, where an order for immediate imprisonment should be made.”
Mr O'Reilly, who argued the appeal on behalf of the appellant, quite properly conceded that there was no manifest error in the sentencing remarks. But he submitted that the only conclusion to be drawn from the imposition of the penalty under appeal, is that the learned sentencing magistrate must have failed properly to take into account the age of the appellant and the fact that this was his first appearance in court.
They are certainly weighty considerations. The magistrate was an experienced magistrate however and I think it unlikely that he did not, in his own mind, make allowance for those circumstances.
Be that as it may the fact remains that the sentence, given that it was unsuspended, is a substantial penalty for this offence. While a period of imprisonment of three months against the maximum penalty of two years may not appear to be taken in isolation excessive, there is no doubt that the failure to suspend it operates harshly on the appellant.
I think this is a borderline case. In the first place I would not like it to be thought that the Court does not take a serious view of the assault, which was an unprovoked, serious assault. Likewise this court has on many occasions acknowledged the fact that recognition must be given of the fact that local magistrates are generally best able to judge what is necessary to maintain order in the district in which they are sitting.
Furthermore, a custodial term of imprisonment may quite properly be imposed even for a first offender on an assault charge, if the circumstances warrant it.
However on a somewhat fine balance I have reached the view that in this case the imposition of a custodial term operated in all the circumstances to produce a manifestly excessive penalty for this young first offender. I am informed that he has work to go to and I think that it is right in the circumstances to give him one further opportunity to demonstrate that he is capable of putting this incident behind him and leading a law abiding life.
The appeal is allowed for the purposes of varying the order under appeal by adding a further order that the sentence of imprisonment of three months be suspended upon entry by the appellant into a bond in the sum of $1000.00 to be of good behaviour for a period of two years from the date of his entry into the bond and during that time to be under the supervision of a probation officer.
The matter is remitted to the Magistrates Court for the purposes of the entry into the bond.
In all other respects the sentence under review is confirmed. No order as to costs.

[1998] SASC 6859

17 September 1998