BUKOVSKIS v Police - [2008] SASC 288

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BUKOVSKIS v POLICE
[2008] SASC 288
Judgment of The Honourable Justice Kelly (ex tempore)
24 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant charged with assault and assault causing harm and sentenced to 10 months imprisonment suspended upon the appellant entering into a good behaviour bond for three years - whether sentence manifestly excessive - respondent conceded that the penalty imposed was manifestly excessive and fell outside of the magistrate's sentencing discretion.
Held: appeal allowed - respondent conceded - penalty was manifestly excessive - appellant sentenced afresh to four months and two weeks imprisonment suspended upon the appellant entering into a bond in the sum of $500 and to be of good behaviour for three years with conditions.
Criminal Law Consolidation Act 1935 S 20, referred to.

BUKOVSKIS v POLICE
[2008] SASC 288
Magistrates Appeal: Criminal
Kelly J (Ex Tempore)

The appellant was charged with assault and assault causing harm contrary to Section 20 of the Criminal Law Consolidation Act 1935. The maximum penalty for the first offence was two years, and the maximum penalty for the offence of assault causing harm was three years imprisonment.
The learned magistrate sentenced the appellant to a period of 10 months imprisonment for both offences, stating that he had reduced this from 15 months on account of the pleas of guilty. The magistrate went on to suspend the sentence upon the appellant agreeing to enter into a bond to be of good behaviour, with conditions. The appellant appeals on the ground that the sentence was manifestly excessive.
The respondent has conceded that in all of the circumstances of this case the penalty imposed was manifestly excessive and, accordingly, fell outside of the magistrate’s sentencing discretion. In the light of that submission, which I consider was correctly made, I will make an order today that the appeal be allowed. It remains for the appellant to be re-sentenced.
The offences occurred on Sunday, 18 November 2007 at a pool hall in Mount Gambier. At about 1.45am the victim in this matter, who was working as a disc jockey, saw one woman attack another on the dance floor. He intervened and held the two women apart. The appellant yelled at the victim and told him to let the women go so they could fight. The victim then said he felt two sharp blows to the back of his head; he turned around and saw the appellant standing directly beside him. That conduct was the subject of count 1, the offence of assault.
A bouncer then came in and dragged the victim toward the bar area. He apparently had mistakenly thought he was the aggressor. While the bouncer was still holding the victim the appellant struck him again in the left eye and cheek area with a closed fist. As a…

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.

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Details

Case: [2008] SASC 288
Decision Date: 24 October 2008

CaseChat Overview and Summary

In the matter of Bukovskis v Police, the appellant was convicted of assault and assault causing harm, and subsequently sentenced to 10 months imprisonment, suspended upon entering into a good behaviour bond for three years. The appellant sought to appeal the severity of the sentence, arguing that it was manifestly excessive. The respondent conceded that the penalty imposed was indeed manifestly excessive and outside the bounds of the magistrate's sentencing discretion.

The court was tasked with determining whether the penalty imposed was manifestly excessive and warranted an appeal against sentence. The key issue was whether the penalty imposed by the magistrate was manifestly excessive, with the respondent acknowledging that this was indeed the case. The court considered the principles of general sentencing, particularly the need for proportionality and consistency in sentencing, as well as the specific circumstances of the case.

The court allowed the appeal, accepting the respondent's concession that the penalty was manifestly excessive. The appellant was re-sentenced to four months and two weeks imprisonment, suspended upon entering into a bond of $500 and being of good behaviour for three years with conditions. The court's decision was based on the need for a proportionate and consistent sentencing approach, taking into account the specific circumstances of the case.

Orders