BUZZACOTT v POLICE - [2017] SASC 64

Supreme Court of South Australia
(Magistrates Appeals: Civil)
BUZZACOTT v POLICE
[2017] SASC 64
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
31 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
Appeal against sentence.
The appellant head-butted the victim during a drunken argument in the early hours of the morning outside The Hotel Flinders in Port Augusta. The appellant came before the Magistrates Court a number of times, whereby the prosecution changed the charges against the appellant. When the charge was finalised, the appellant pleaded guilty to assault.
The appellant was sentenced to 11 months imprisonment partially suspended upon the appellant serving two months in prison and entering in a bond to be of good behaviour for 18 months. The Magistrate started with a sentence of 12 months which was discounted by approximately 10 per cent for the appellant’s guilty plea.
The appellant spent approximately two weeks in custody before being released on bail pending this appeal. The appellant appeals his sentence as manifestly excess.
On the appeal the respondent accepted that the appellant was entitled to a full discount for his guilty plea pursuant to s 10B of the Criminal Law (Sentencing) Act 1988.
Held per Kourakis CJ, allowing the appeal:
1.    The appellant was entitled to a discount on his sentence of up to 40% because the offence of common assault is not a statutory or common law alternative to a charge of recklessly causing harm which had earlier been alleged.
2.    The sentence was manifestly excessive, the appellant has no antecedents for violence and has prospects for rehabilitation.
3.    Sentence imposed in the Magistrates Court of South Australia set aside
4.    Accounting for the time served in prison, the appellant is resentenced with conviction. The sentence is suspended upon entering a bond to be of good behaviour, undertake community service, and engage with any rehabilitation directed by his community corrections officer.
Criminal Law Consolidation Act 1935 (SA) s 20; Criminal Law (Sentencing) Act 1988 (SA) s 10B, referred to.
R v Wakefield [2015] SASCFC 10; R v Muldoon [2015] SASCFC 69, applied.
Birch v Fitzgerald (1975) 11 SASR 114; Yardley v Betts (1979) 22 SASR 108, discussed.

BUZZACOTT v POLICE
[2017] SASC 64
Magistrates Appeal: Civil

KOURAKIS CJ (ex tempore): On 15 September 2016 the appellant pleaded guilty to a charge of assault. The appellant was sentenced in the Magistrates Court sitting at Port Augusta to imprisonment for 11 months, which was partially suspended allowing the appellant to be released after serving two months on entering into a bond to be of good behaviour for a period of 18 months. The Magistrate arrived at the sentence of 12 months by allowing a reduction of about 10 per cent for the appellant’s plea of guilty.
The appellant was imprisoned for a period of about two weeks thereafter until he was released on bail on the filing of an appeal against his sentence in this Court. On 15 December 2016 I allowed the appeal and set aside the sentence. I adjourned the further hearing of the appeal and the question of resentencing for a relatively long period of time to give the appellant an opportunity to undertake anger management counselling.
I allowed the appeal on the grounds that the sentence was manifestly excessive and that the Magistrate had failed to apply s 10B of the Criminal Law (Sentencing) Act 1988 (SA). It is necessary to briefly explain my reasons.
The offence of assault was committed in the early hours of the morning on 28 June 2015 outside The Hotel Flinders in Port Augusta. The victim of the assault was Clinton Dadleh who worked at the hotel as a DJ. The appellant head-butted Mr Dadleh after arguing with him and others and has no recollection of the assault. He also suffered three stitches to his lip which subsequently became infected. Mr Dadleh continues to experience some memory loss and has ongoing anxiety.
One witness to the incident described the appellant arguing with Mr Dadleh’s sister. Another witness saw the appellant arguing with both Mr Dadleh and his sister Deanna Dadleh. Another witness saw the appellant head butt Mr Dadleh knocking him to the ground.
In submissions on sentence made to the Magistrates Court, the appellant’s counsel informed the Court the assault was preceded by an argument between the appellant and Ms Dadleh, who was ‘talking smart to him’ and had been generally offensive to him. The appellant was drunk at the time but this was unusual for him.
The appellant was originally charged on information with two counts of intentionally causing harm to both Mr Dadleh and his sister. The appellant was committed to the District Court for trial on those charges but the proceedings were discontinued and the appellant was charged with recklessly causing harm to Mr Dadleh in the Magistrates Court. The matter was listed for trial on 15 September 2016, but on that day that charge was withdrawn and the appellant was charged with basic assault to which he pleaded guilty.
On the appeal the respondent accepted that the appellant was entitled to a reduction in his sentence of up to 40 per cent because the offence of common assault was not a statutory or common law alternative[1] to a charge of recklessly causing harm. Moreover there was no indication that a plea of guilty to assault would have been accepted either on the charges first laid or earlier in the course of the reckless cause harm proceedings. In those circumstances there was no reason why the reduction for the appellant’s guilty plea should not have approached 40 per cent. I allowed the appeal for that reason.
[1] R v Wakefield [2015] SASCFC 10; R v Muldoon [2015] SASCFC 69.
I also allowed the appeal on the ground that the sentence was manifestly excessive. The maximum penalty for a basic offence assault is two years imprisonment. [2]
[2] Criminal Law Consolidation Act 1935 (SA) s 20(3)(a).
The appellant was born on 23 January 1995 and is therefore now aged 22. He is an initiated Aboriginal man who has lived in Fregon on APY and worked in that township’s store. He was a good athlete at school.
The appellant completed Year 11 and then took up a 12 month full time traineeship with the Port Augusta City Council. Unfortunately there was no work for him there after the traineeship came to an end and he became unemployed. The appellant played football for the South Augusta Football Club at B Grade Level initially and then A Grade. No prior offending of a similar type was alleged.
In the ordinary course a short period of immediate imprisonment of some months may be appropriate for an offence of this kind even in the case of first offender or an offender with relatively few criminal antecedents. In Birch v Fitzgerald[3] Bray CJ said this Court upheld a sentence of two months for an offence of common assault:
Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated. … A court will often in my view be justified in treating unprovoked violence in the same way in the absence of mitigating circumstances. As I said in Sellen v. Chambers: ‘Violence has increased, is increasing, and ought to be diminished, particularly violence by young men towards each other.’ It may be that the incidence of such violence will be reduced if it is brought home to those likely to resort to it that if they do they may very well be punching, striking, butting or kicking themselves into gaol.
I am not, of course, saying that all such first offenders ought to be sent to gaol. There is a wide range for the proper application of judicial discretion …
(Citations omitted)
[3] (1975) 11 SASR 114 at 116-117.
In Yardley v Betts[4] King CJ explained the nuanced way in which the law resolves the tension between the competing purposes of rehabilitation and deterrence in sentencing for offences of assault:
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations. They are summed up, in the aspects relevant to the present discussion, by Napier C.J. in Webb v. O'Sullivan.
The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.’
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.
How are these principles to be applied to offences of assault? Assaults vary very greatly in seriousness. Some result in injury to the victim and some do not. Some are committed under provocation in the heat of the moment and others are wanton and premeditated attempts to impose the offender's will on the victim by force. Some are mere man to man altercations and others are terrifying and cowardly examples of mass violence. Many other variations could be mentioned. The offenders vary from the normally law-abiding person who is caught up in a situation of stress which erupts into violence, to the habitual bully and thug. In some cases a term of imprisonment may enhance rather than diminish the prospects of the offender avoiding crime in the future. In other cases, a term of imprisonment may turn a usefully employed person into a frustrated unemployed person, may deprive the offender of the best and most stabilizing influences in his life by disrupting a good family situation, and may increase a propensity to crime by placing him in the company of criminals. The need for deterrent punishment will vary according to the circumstances of the offence.
[4] (1979) 22 SASR 108 at 112-115.
The appellant is neither a habitual bully nor a thug. He over-reacted in the heat of the moment. The assault was limited to a single strike and the appellant voluntarily desisted rather than pressing his advantage. He has positive prospects for rehabilitation. The starting point of 12 months for a single head butt administered by a young man with no significant criminal antecedents in the heat of a verbal argument was manifestly excessive.
In the period since 15 December 2016 the appellant has voluntarily received anger management counselling from Centacare Catholic Family Services Country SA. He has attended on six occasions. I have received a report from Centacare which describes the appellant’s participation in positive terms. He has developed strategies to deal with it and manage his anger. He is keen to find gainful employment.
Ms Burgess has informed the Court today that he has returned to playing football, this time with the Central Augusta Football Club, and has started training for the A and B grades.
Ms Burgess informed the Court that the appellant was a binge drinker but that he has reduced both the frequency and quantity of his drinking.
I am impressed by the fact that the appellant has not returned to the Flinders Hotel on weekend nights but goes there only on Tuesdays to participate in an 8-ball competition.
The appellant has actively searched for work, I am told that the appellant won an interview for work in Roxby Downs on a fly-in fly-out basis but was unable to take it up because of a bereavement in his wider family. There is also some prospect that the appellant might find work grading the Fregon to Ernabella Road with his uncle who has a contract for that work.
In the ordinary course, if I were sentencing at first instance, I would have ordered a short period of imprisonment of immediate imprisonment of about two months and reduced that to about five weeks for the appellant’s plea of guilty. However, the appellant, as I observed earlier, spent some 17 days in custody after he was sentenced by the Magistrate. He was arrested and spent some seven hours in custody overnight soon after the assault itself.
In all of the circumstances, the appellant having served some time in prison, it is open to me to proceed by an alternative course which recognises that the period in prison which the appellant has already served and allows for a more rehabilitative sentencing regime.
Accordingly, I will convict the appellant but release him on a bond to be of good behaviour for a period of 18 months. In addition to such mandatory terms as must be imposed by statute, I impose the terms that the appellant undertake throughout the period of the bond 40 hours of community work, that he be under the supervision of a community corrections officer and obey the directions which that officer may give to engage in counselling for the purposes of anger management or moderating his consumption of alcohol or to undertake courses which might enhance his prospects of finding employment.