Brady & Coulthard v Police No. Scciv-03-665

[2003] SASC 215

BRADY & COULTHARD v POLICE
[2003] SASC 215

Magistrates Appeal

1. PRIOR J: The appellants were found guilty of assault. They appeal against the sentence imposed upon each of them. That sentence was one of six months imprisonment. The magistrate directed that the appellants serve three months of that term and suspended the remainder pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988. In this appeal it is said that the magistrate failed to give due regard to all the circumstances of the matter in determining not to wholly suspend the sentences of imprisonment.

2. The magistrate found that the assault found proved consisted of the kicking of the victim whilst he was reeling from blows already received.  The magistrate described the behaviour as cowardly and unnecessary on the part of both appellants.  His Honour observed that there was potential for serious injury but that fortunately, that appeared not to have occurred.

3. The magistrate referred to the victim’s impact statement and observed that neither appellant had expressed any remorse.

4. The magistrate then summarised the personal circumstances of each appellant, noticing with respect to each of them that there could be some effects upon their employment prospects and opportunities if they were sent to gaol.  The magistrate referred to the previous convictions of each appellant, observing that one did not have “much in the way of assaults” included within his record whereas the other, Mr Coulthard, did have a record, including some previous assaults.  However, with respect to each appellant the magistrate observed that his rate of offending had slowed down as he had matured.

5. The magistrate said that he viewed the assault as an unpleasant assault with the potential for serious injury to be caused.  He referred to the submission of the prosecutor that a custodial sentence should be considered.  Likewise, he referred to the representations made by counsel for the appellants, that the court suspend any such sentence.  The magistrate then said that he reached the conclusion that the assault was of such a nature that some period of a custodial sentence ought to be served.  His Honour saw no reason to treat either of the appellants differently from the other and then imposed, as against each of the appellants, a conviction with imprisonment for six months, each appellant to be released after serving three months upon entering a bond in the amount of $200 to be of good behaviour for the remaining three months.

6. In his reasons for finding the charge proved the magistrate acted more upon the evidence of an off duty police officer than anyone else.  The incident took place at about 2.00 am in an enclosed walkway, leading from one part of the Augusta Hotel to the men’s toilets.  The off duty police officer was found to have a clear view of the victim, curled up on the floor, being repeatedly kicked by Coulthard, partly while also being punched by Brady and partly while Brady held the victim back by the upper arms.  The magistrate said that there was no doubt that on the evidence of that officer, the person who kicked the victim was Mr Coulthard, whom the officer apprehended before he chased the other appellant, Mr Brady. 

7. The magistrate indicated that on the evidence before him he could not exclude the possibility that the victim acted aggressively towards the appellants at some stage before the off duty police officer made the observations summarised.  The magistrate found that there was no reliable detailed evidence as to the earlier stages of the conflict. 

8. His Honour said that he was satisfied beyond reasonable doubt that the appellants, having been involved in a skirmish involving the victim, regrouped after walking out of the hotel separately and then decided to re-enter the hotel in order for Mr Brady to point out “the unpleasant, fat man”, the person found to be the victim of the assault which followed. 

9. The magistrate found that the appellants followed the victim into the men’s toilet area of the hotel, with the intention of confronting him over alleged racist and insulting remarks made to Mr Brady earlier that night and that, in the alley leading to the toilets, a fight broke out between the appellants and two others, including the victim, after a verbal exchange.  The appellant Brady punched the victim hard with his right fist to the face as a result of which the victim slumped to the floor. 

10. The magistrate also found that the appellant Brady further punched the victim to the head at least twice, and that the appellant Coulthard, having disengaged himself from another person then with the victim, kicked the victim to the head not less than four times, with the appellant Brady taking hold of the victim’s upper arms and pulling his arms back while Mr Coulthard delivered the kicks. 

11. The magistrate’s view was that the appellants acted in concert and found that they had not acted in self-defence.  His Honour said that after the victim had been king hit he was curled up on the ground.  He did not pose a threat to either appellant, who further punched and kicked their victim while he was down.  The magistrate said that it would have been easy for the appellants to walk out of the alley at that time so that, in those circumstances, there was no question of their acting in self-defence.  His Honour expressly found that neither appellant genuinely believed that the kicking and punching of the victim while he was curled up on the ground was necessary and reasonable for a defensive purpose.  Thus, in the circumstances, their conduct was not reasonably proportionate to any threat that either appellant genuinely believed to exist.

12. There can be no doubt from the sentencing remarks that the magistrate considered that a sentence of imprisonment was the only appropriate sentence for each appellant on the findings he had made. He clearly considered whether there was good reason to suspend that sentence but did not think so. The power invoked by the magistrate followed after His Honour failed to find good reason for suspending the whole sentence. There is no identifiable error in the sentencing process and no proper basis to permit this Court interfering with the proper exercise of sentencing discretions. I cannot say that the personal circumstances of either appellant are such that the magistrate should have found good reason to suspend either sentence of imprisonment. I cannot say that the sentence imposed and order made pursuant to s 38(2a) is a plainly unjust result[1].  There is nothing in the antecedents of either appellant, nor in the nature of the offending which would require such orders as a matter of course.  It has not been demonstrated that the magistrate erred in the exercise of his discretion with respect to either appellant.

    [1]        von Doussa J in Ware v Betts (1987) 134 LSJS 212 at 220

13. In the case of Mr Brady, there was nothing exceptional, in the circumstances of his case, to warrant the exercise of the discretion to wholly suspend the sentence of imprisonment.  As the respondent’s counsel put it, the fact that Mr Brady has dependants relying upon him for support was a factor clearly taken into account by the magistrate.  However, it is not unusual and does not, of itself, constitute an exceptional circumstance justifying suspension.  Secondly, Mr Brady has previously been sentenced to terms of imprisonment, both custodial and suspended.  He has some previous convictions for offences of violence for which he has previously been treated leniently. 

14. In the case of Mr Coulthard, again, it cannot be said that there was something exceptional in the circumstances of his case to warrant the exercise of the discretion to wholly suspend the sentence of imprisonment.  The magistrate clearly took into account the fact that Mr Coulthard had dependants relying upon him for support.  Again, it is not unusual.  It does not of itself constitute an exceptional circumstance justifying suspension of the entire sentence of imprisonment.  Although having to serve some part of the custodial sentence may impact upon Mr Coulthard’s employment at the Beverley Uranium Mine, Mr Coulthard appears to have the support of his employer.  At least there is no evidence that the sentence imposed will cause him to lose his employment in the long term.  Whilst Mr Coulthard has not previously been sentenced to a term of imprisonment, he has previously been ordered to enter into a number of bonds.  Enforcement proceedings were brought in relation to one of those bonds.  The number of previous convictions for offences of violence is a factor which cannot be overlooked with respect to suspension of the entire sentence.

15. Overall, it must be said that in ordering partially suspended sentences the magistrate has been lenient, rather than severe, and has sought to ensure that the period of imprisonment served provides some necessary personal deterrent effect upon each appellant, whilst not being so long as to hamper their long-term prospects for rehabilitation.

16. The appeals are dismissed.