BURNETT v Police

[2007] SASC 18

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

BURNETT v POLICE

[2007] SASC 18

Judgment of The Honourable Justice David (ex tempore)

16 January 2007

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against sentence - the appellant pleaded guilty to assault causing harm, disorderly behaviour and resisting police - offences arose from an incident where the appellant punched a man once causing bruising to the face - in relation to the assault causing harm charge the magistrate imposed a sentence of 14 months imprisonment, with a non-parole period of nine months - in relation to the other offences, the magistrate convicted without penalty - following the sentence, but prior to the appeal hearing, the appellant served seven weeks of the sentence - whether the sentence was manifestly excessive - held, appeal allowed - the sentence was manifestly excessive (conceded) - re-sentenced conviction without further penalty.

BURNETT v POLICE
[2007] SASC 18

Magistrates Appeal

1. DAVID J.               This is an appeal against sentence for assault causing harm, disorderly behaviour and resisting two police officers. The latter two charges were dealt with by way of conviction without penalty. The first charge was in relation to an assault at the South Adelaide Football Club, the details of which are set out in the affidavit before me and the outline of counsel and, indeed, the magistrate’s reasons. I will not go into that.

2. It is conceded very fairly by the prosecution that the term of imprisonment that was set, namely 14 months with a non-parole period of nine months, was manifestly excessive, especially as the starting point in relation to the head sentence would be 18 months and allowance was made for the fact that there was a plea of guilty. It was conceded, therefore, that 18 months was excessive in relation to this type of offence, bearing in mind the maximum was three years. I therefore allow the appeal on that basis. I therefore re‑sentence the appellant.

3. I take into account that the appellant has no previous convictions and has an excellent work record. This was a spontaneous matter for which he was instantly sorry and apologised straight away. I have a favourable reference from the authorities at Yatala Labour Prison, and of course he has spent almost seven weeks in custody.

4. Bearing in mind all of the above, the matter can best be dealt with by recording a conviction without further penalty. The appellant can be released from custody immediately.