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)

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 result of this blow, the victim’s left eye became badly swollen and his eyebrow was split open. That is the conduct, the subject of count 2, which was the offence of causing harm, the more serious of the two offences.

6. This offending, as a whole, is very serious. They were unprovoked attacks and they were carried out whilst the victim was in a vulnerable position. First, the appellant struck the victim from behind and, second, he struck him again whilst he was still being held by the bouncer, under a misunderstanding that he had something to do with the fight.

7. Nevertheless, as the respondent concedes, this is the appellant’s first conviction for a serious offence of violence. Whilst his antecedent report reveals a number of traffic and behavioural-type offences, I acknowledge that this appears to be, apart from one offence of hinder police, the first occasion which the appellant has been sentenced for an offence of assault and assault causing harm. I note, however, that he does have a number of convictions in the Adelaide Children’s Court including some offences of dishonesty.

8. There has been some confusion prior to the hearing and today as to the accuracy of the instructing solicitor’s affidavit, in which she claims that the appellant has served one month in custody solely referable to this matter. After some discussion, both counsel agreed today that this Court should proceed on the basis that, if the appellant has spent time in custody it is certainly not referable to this offending.  Accordingly, I will not take into account any time spent in custody on account of this offending.

9. It seems to me, after consideration of all of the circumstances, and the appellant’s personal circumstances, that the interests of justice will be best served in this case, and by that I mean the need to impose a sentence which has the necessary deterrent effect both on the offender and on other persons who might be minded to commit offences in public places like that, if I accede to the request of the appellant’s counsel to impose a short sentence of imprisonment, suspended. I note that the magistrate who originally sentenced the appellant came to the same conclusion, although the mathematics of the magistrate’s sentence was under question in relation to the appeal, both as to the amount of discount and the starting point in the ultimate sentence arrived at.

10. After consideration of all the relevant circumstances, I consider that the starting point for sentencing of the appellant should be a period of six months imprisonment. After taking into account a discount of 25per cent, for the plea, that means a sentence of four months and two weeks. I therefore impose a sentence of imprisonment of four months and two weeks. That sentence will be suspended upon the appellant agreeing to enter into a bond in the sum of $500 in his own recognizance, to be of good behaviour for a period of three years.

11. I consider it appropriate that the appellant be under the supervision of a community corrections officer for a period of six months, and that he comply with the directions of that officer generally with respect to participation in any programs, and, in this case, I note that a program relating to anger management would be particularly apposite for this offending, and/or a program relating to drug and alcohol management.

12. I also order, in accordance with the original order of the magistrate, and to ensure that the victim of this matter is not troubled any further by the appellant, that the appellant be restrained from communicating with or approaching or harassing, either directly or indirectly, the victim for a period of five years.

13. The appellant is to enter into the good behaviour bond by 5pm Friday 24 October 2008 in the Mount Gambier Registry.