Bridges v Police - [2017] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
BRIDGES v POLICE
[2017] SASC 35
Judgment of The Honourable Justice Stanley
23 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
Appeal against Magistrate's decision imprisoning the appellant for an assault contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).
Where the appellant was self-represented on a plea of guilty. Where the respondent acknowledged that the sentencing discretion had miscarried due to (a) the Magistrate's failure to inform the appellant of his right to dispute facts upon which he was sentenced; and (b) the failure of the Magistrate to obtain sufficient information as to the appellant's personal circumstances as relevant to the possible term of imprisonment.
Held: Appeal allowed. A House v The King error having occurred, the appellant must be resentenced [19].
Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 10(1), referred to.
House v The King (1936) 55 CLR 499; Cooling v Steel (1971) 2 SASR 249, applied.
Police v Dorizzi (2002) 84 SASR 416; Police v Cadd (1997) 69 SASR 150; R v Wilton (1981) 28 SASR 362; Fewings v Police [2008] SASC 205; Police v Chilton (2014) 120 SASR 32; England v Police [2001] SASC 367, considered.

BRIDGES v POLICE
[2017] SASC 35
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against sentence.
The appellant, who was unrepresented, pleaded guilty to the charge of assault cause harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). A magistrate imposed a sentence of imprisonment of four months and four weeks, suspended after serving two months imprisonment on entering into a bond to be of good behaviour for two years.
The offence involved an unprovoked attack at a workplace following threats made to the victim. The victim was known to the appellant.
The magistrate sentenced on the basis that the appellant kicked the victim in the face and proceeded to kick and stomp on the victim’s head for a period the victim estimated to be about three minutes. The victim experienced intense pain, although he was able to escape from the attack. There was evidence before the Court of the victim suffering lacerations and swelling to his face and head as well as some injuries to his neck.
The magistrate imposed the sentence of imprisonment against a background of an earlier conviction for assault for which a suspended sentence was imposed in March 2012 and a subsequent conviction for property damage later the same year.
There are five grounds of appeal. They are that the learned magistrate erred in:
1.not wholly suspending the sentence;
2.proceeding to sentence to an immediate term of imprisonment without adequately informing himself of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bridges v Police

Details

AGLC: Bridges v Police [2017] SASC 35
Case: [2017] SASC 35
Decision Date: 23 March 2017

CaseChat Overview and Summary

In Bridges v Police, the respondent appealed against a sentence imposed by a magistrate on the appellant, who was convicted of assault. The primary issue before the court was whether the magistrate erred in failing to inform the appellant of his right to dispute contested facts and in not obtaining information from the appellant concerning his personal circumstances. The court considered whether these errors warranted the sentence being remitted for resentencing by a different magistrate. The principles applicable to sentencing unrepresented defendants were well established, as identified in Cooling v Steel, which emphasised the importance of ensuring the defendant is aware of their rights and duties throughout the proceedings. The court found that the magistrate failed to inform the appellant of his right to dispute contested facts, and did not obtain information about the appellant's personal circumstances, which are critical when sentencing an unrepresented defendant. These errors contravened established sentencing principles. Consequently, the court allowed the appeal, set aside the sentence, and remitted the matter for resentencing by a different magistrate.

The court held that the magistrate's failure to inform the appellant of his right to dispute contested facts and to obtain personal information from the appellant constituted significant errors in the sentencing process. These errors meant that the court could not be satisfied that the sentence imposed was appropriate. Given the respondent's concession that these errors occurred, the court was left with no choice but to remit the matter for resentencing. The principles established in Cooling v Steel required the magistrate to ensure the appellant was fully informed and to consider personal circumstances when sentencing an unrepresented defendant. The court emphasised that these principles must be rigorously observed, particularly when imprisonment is a possibility. The failure to adhere to these principles rendered the sentence invalid.

The court's decision to remit the matter for resentencing by a different magistrate was grounded in the necessity to rectify the identified errors. The principles set out in Cooling v Steel are fundamental to ensuring a fair and just sentencing process for unrepresented defendants. By not informing the appellant of his right to dispute contested facts and by not obtaining personal information, the magistrate failed to observe these principles. The court concluded that these errors necessitated a resentencing hearing to ensure that the appellant's rights were properly respected and that the sentence imposed was appropriate. The appeal was allowed, and the sentence was set aside. The matter was remitted for resentencing, ensuring that the appellant would be fully informed of his rights and that his personal circumstances would be considered.

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 these circumstances I am satisfied that the appropriate course is to remit the matter to another magistrate for resentencing. Conclusion I would allow the appeal. I would set aside the sentence imposed by the magistrate. I would remit the matter for resentencing by a different magistrate.

Ratio Decidendi

Legal Principle Established

The principles applicable to the approach to be taken by a court where an unrepresented defendant is to be sentenced are well established. In Cooling v Steel[8]Wells J identified that the duty of a court in those circumstances is to ensure that the defendant is appraised of his rights and duties at all times and is vigilant to keep the proceedings free of error or misunderstanding. Wells J set out the following matters that should be observed:[9]1. Ensuring before a plea is taken that the defendant is informed of the offence with which he or she is charged;2. The defendant is made to appreciate that the plea is a matter for his or her own independent decision but that the defendant is entitled to legal advice and representation and to a reasonable adjournment to obtain the same;3. If the question of bail arises, the defendant is made aware of the right to apply for bail and the matters a court takes into account in relation to bail and the capacity to make submissions in support of such an application;4. If the matter is to proceed, the defendant should be informed of the seriousness of the charge and of the penalties that may be imposed, especially where the court has power to disqualify from holding or obtaining a driver’s licence, or order compensation, or direct forfeiture of property or order imprisonment; 5. On a plea of guilty the defendant should be informed that he or she may put matters of mitigation by submission or on oath and that he or she may call witnesses or produce other relevant material; 6. On a plea of guilty, before the prosecutor places the facts before the court, the defendant should be informed that he or she is entitled to dispute or comment on the facts, including prior convictions; 7. If facts are disputed, the defendant should be given the opportunity to support his or her version by sworn evidence and/or calling witnesses, or, if appropriate, consideration should be given to treating the defendant’s contention as to the facts as a plea of “not guilty”;8. Special considerations apply to indigenous defendants and to persons with an inadequate grasp of the English language.[8] (1971) 2 SASR 249.[9] (1971) 2 SASR 249 at 250 – 252.Consideration As I have noted, the respondent concedes that the magistrate erred by not informing the appellant of his right to dispute facts that were contested. Upon consideration of the sentencing remarks it is clear the appellant disputed some of the circumstances surrounding the assault. The failure to offer the appellant the opportunity to dispute the facts which are contested is a failure to observe one of the principles identified in Cooling v Steel. The respondent also concedes that the magistrate erred, in circumstances where the appellant was unrepresented, in failing to obtain information from him concerning his personal circumstances. As was observed in England v Police[10] by Mullighan J, when an unrepresented defendant makes no submissions and imprisonment is a possibility, the magistrate should question the defendant to see if there is a basis for a more merciful approach to sentencing. That questioning must include matters concerning the personal character and antecedents[11] of the defendant and the impact upon the defendant of a sentence of imprisonment. [10] [2001] SASC 367 at [19].[11] See s 10(1)(l) Criminal Law (Sentencing) Act 1988 (SA).